The growth of computerisation in all aspects of life has resulted in the growth of new areas for discovery. Computers have not only created new forms of substantive communication and facilitated the documentation of conventional forms of communication, computers are busy generating documentation of their own processes. Much of the literature on electronic discovery written for the legal audience stresses the need for lawyers to conduct a preliminary layer of discovery prior to substantive discovery. This involves discovery of a client’s (or opponent’s) computer system itself, the business processes associated with it, and the resulting system documentation. Particularly in the United States, bar journals abound with articles on how to conduct this preliminary discovery. While new forms of substantive computer-mediated communication may increase the volume of discovery, inquiry into system documentation increases the scope of discovery. The question is whether this increased scope is an unavoidable consequence of electronic discovery.

Conventional paper-based document discovery is relatively straightforward. Lawyers and their clients understand and can readily see storage boxes, file cabinets, file folders, and the papers contained therein. The filing system and records management process for paper documentation is generally known or at least documented in most organisations, if for no other reason than the need to store and retrieve the physical files on a day-to-day basis. Unlike conventional discovery of paper documents, the sources of electronic documentation, the storage systems, and the mechanisms of retrieval are not readily visible, and most lawyers and their clients are unfamiliar with the workings of their own desktop computers, let alone a computer network.

One lesson repeated in the literature is the need to discover metadata, or information about computer-generated documents, in addition to the documents themselves. Metadata are information contained within the electronic version of a document that may not be apparent in a print-out of the same document. The date the document was created, the identity of the author and subsequent editors, the distribution route of the document, and even the history of editorial changes may all be part of the metadata. Metadata are important when viewing a word-processing document, and considered essential when viewing an e-mail as the only method of authenticating the sender, route, and content.

Computer networks automatically generate copious records of their own activities, and the electronic discovery literature stresses the need for attorneys to obtain and understand this information. Network records may include information about who had access to what data or equipment at any given time; the structure of the files; what documents were distributed to whom, when, and in what form; when backups were performed; and even when the network or various parts of it were inoperable. It should be noted that none of this information touches on the substantive content of any documents on the network, archives, or associated storage media.

As discussed above in relation to the increased volume of discovery data, one of the favourite themes of the electronic discovery literature is that routine deletion of a computer file does not destroy the file, but merely marks the disk space the file occupies for overwriting if needed. Given the ever-expanding memory capacity of today’s computers and the fact the file itself may be found on several places on a disk, the chance that a "deleted" file would actually be entirely overwritten is slight.

The recoverability of deleted data is a prominent theme in the electronic discovery literature. In both the United States and the United Kingdom, a small army of computer forensic consultants has sprung up to answer the perceived need among attorneys for data recovery services. Alternatively, a review of the literature could lead one to conclude that a small army of computer forensic experts has created a perception through the electronic discovery literature that their data recovery services are needed.⁵²

4. The Policy Implications of New Areas of Discovery

Metadata, system records, and deleted files are new sources of discoverable information with few counterparts in the conventional world of paper discovery. While metadata may be viewed as simply extensions of relevant documents, the discovery of metadata and other system records expands the scope of discovery from documents containing substantive information about the dispute to documents containing information about substantive information about the dispute.

Some level of discovery beyond the substantive documents themselves may be necessary to establish the context or authenticity of the substantive documents. Since this can now be done in documentary form (as opposed to oral testimony, the usual method of establishing the authenticity and context of conventional paper documents) it may be less costly and more efficient to allow this discovery in some cases. It does not necessarily follow, however, that because we now have the capability of reconstructing the past in minute detail using electronic documentation, there is a need to do so in every case.

Unless the attempted deletion of electronic documents is itself an issue under dispute, the discovery of deleted documents will reveal only that the readily-available electronic documents were preceded by drafts or accompanied by copies, or that in the normal course of business prior to litigation, many routinely-generated documents were considered non-essential. These are not surprising revelations.

Therefore, the discovery of metadata, system records, and deleted files, beyond that necessary to authenticate or place the substantive documentation into proper context, may be viewed as an expansion of scope, and such discovery may be conditioned on a showing that it is likely to result in substantive, material evidence not otherwise available.⁵³ The explicit authorisation in CPR Part 31 to determine "proportionality" in setting the limits of discovery and disclosure, coupled with an explicit instruction to use technology whenever it may reduce costs and speed justice, may place British judges in a better position to deal with inevitable disputes over the scope of electronic discovery. Although American judges are authorised to engage in a similar balancing of costs and benefits, they are traditionally loath to do so.

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