ENDNOTES
  1. Kenneth J. Withers is a member of the Massachusetts bar and is currently a Research Associate at the Federal Judicial Centre in Washington DC. He received his JD from Northwestern University in Chicago Illinois and his Masters in Library and Information Science from Simmons College in Boston Massachusetts. He is currently a PhD candidate at the University of Wales Aberystwyth, supervised jointly by the Department of Information and Library Studies and the Department of Law. The opinions expressed herein are entirely his own, and do not reflect opinions of the Federal Judicial Centre or any of the aforementioned educational institutions.

  2. United States v. Microsoft Corp., Civil Action 98-1232 (TPJ) (D.C.D.C. 12 November 1999) (Findings of Fact).

  3. Kenneth T. Starr, "Referral to the United States House of Representatives" (9 September 1998) <http://icreport.loc.gov/icreport/1cover.htm>.

  4. Andrea Estes and Todd Wallack, "Raytheon case sparks showdown over Internet privacy," Boston Herald, 4 March 1999, at 001.

  5. Samuel A . Thumma, "Electronic mail in the workplace: Litigation trends for 1998" (visited 14 December 1999) <http://www.brownbain.com>.

  6. Maria Glod, "He-said, she-said divorces take on twist with e-mail," Boston Globe, 2 May 1999, at A16.

  7. John Carlin, "Lawyers get the message about abusive e-mail," Independent, 20 July 1997, at 14.

  8. "Legal Week: Case of the week," Lawyer, 28 June 1999, at 48. See also, Robert Verkiak, "BG to pay 6 200,000 in e-mail libel case," Independent, 24 June 1999, at 21.

  9. Neasa Macerlean, "Workplace: Off to the loo? Smile: You are on CCTV," Observer, 30 August 1998, at 001.

  10. Laura Lind, "Messages that bite back: E-mail is gaining weight as evidence in courts," Financial Post, 15 August 1998, at IT11.

  11. "E-mail risks are greater than they seem," Business Day, 23 September 1999, at 31.

  12. Joan Feldman, "You can run but you can't hide," Charter, 1 April 1999, at 46. See also, Towers, Perrin, Forster & Crosby, Inc. v Taplin & Ors [1999] VSC 439 (12 November 1999) (Application for Interlocutory Injunction), a high-profile unfair competition case in which in which e-mail evidence contradicting testimony nearly is cited extensively by Mandie, J.

  13. James Saunders, "Legally On Line," Scotsman, 1 June 1999, at 12.

  14. For a comparison of common law and civil law approaches to discovery, see Richard L. Marcus, "Retooling American Discovery for the Twenty-First Century: Toward a New World Order?," Tulane Journal of International and Comparative Law 7: 153 (1999).

  15. Lord Woolf, Access to Justice: Final Report, Chapter 12, paragraph 37 (visited 29 November 1999) <http://www.open.gov.uk/lcd/civil/final/sec3b.htm#c12>.

  16. For the convenience of UK readers who wish to quickly consult the text of the Federal Rules of Civil Procedure (hereinafter "FRCP"), a complete and reasonably authoritative version is posted on the World Wide Web by the Legal Information Institute of Cornell Law School. All FRCP citations will be to this version, which starts at <http://www.law.cornell.edu/rules/frcp/overview.htm>.

  17. FRCP Rule 8 (visited 12 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule8!27]/doc/{@86}?>.

  18. FRCP Rule 30 (visited 12 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule29!27]/doc/{@340}?>.

  19. FRCP Rule 33 (visited 12 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule33!27]/doc/{@384}?>.

  20. FRCP Rule 34 (visited 12 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule34!27]/doc/{@394}?>.

  21. FRCP Rule 34(a) (visited 12 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule34!27]/doc/{@394}?>.

  22. Civil Procedure Rules (hereinafter "CPR") Part 31, (visited 12 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm>.

  23. CPR Rule 7.2(1) (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-07.htm#rule-7.2>.

  24. CPR Rule 16.2(1) (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-16.htm#rule-16.2>.

  25. CPR Rule 16.4 (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-16.htm#rule-16.4>.

  26. CPR Practice Direction: Part 16 - Statements of Case (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/pdp-16.htm>.

  27. Lord Woolf, Access to Justice: Final Report, Chapter 12, paragraphs 47 - 50, (visited 29 November 1999) <http://www.open.gov.uk/lcd/civil/final/sec3b.htm#c12>; CPR Rule 31.16 (visited 12 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.16>.

  28. [CPR Rule 31.4] (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.4>.

  29. CPR Rule 31.7 (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.7>.

  30. CPR Rule 31.3 (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.3>.

  31. Compare FRCP Rule 26 (visited 29 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule26!27]/doc/{@282}?> and CPR Rule 31.6 (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.6>.

  32. Robert A. Goldspink, Moderator, "London attorneys explain their legal system: Even the smallest differences can befuddle the uninformed American," Corporate Legal Times, February 1998, at 40.

  33. The debate is summarised in Rogelio A. Lass, "Gladiators be gone: The new disclosure rules compel a re-examination of the adversary process," Boston College Law Review 36:479 (1995) at 503-509.

  34. Goldspink, supra note 34; See also Marcus, supra note 14, at 156-157.

  35. John Carlin, "Lawyers get the message about abusive e-mail," Independent, 20 July 1997, at 14.

  36. Thomas E. Willging, et al., "An empirical study of discovery and disclosure practice under the 1993 Federal Rule Amendments," Boston College Law Review 39:525 (1998). See also Judith A. McKenna and Elizabeth C. Wiggins, "Empirical Research on Civil Discovery," Boston College Law Review 39:785 (1998).

  37. FRCP Rule 26(a)(1) (visited 29 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule26!27]/doc/{@282}?>.

  38. "Judicial Conference approves changes to Federal Rules of Civil Procedure," United States Law Week, Legal News 68 at 2168 (September 28, 1999).

  39. id.

  40. FRCP Rule 16 (visited 29 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27rule16!27]/doc/{@192}?>.

  41. CPR Rule 1.4(1) (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-01.htm#rule-1.4>, read in association with CPR Rule 1.1(2) (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-01.htm#rule-1.1>.

  42. CPR Rule 1.4(2)(k) (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-01.htm#rule-1.4>.

  43. Supra note 21.

  44. Supra note 28. See also Grant v. Southwestern and County Properties, Ltd. (1978) Ch. 185, 198; Derby & Co. Ltd. and Others v. Weldon and Others (No. 9) (1991) 1 WLR 652.

  45. A complete list of the writings included in this study is posted at < http://www.kenwithers.com/bibliography/>.

  46. See generally Richard Marcus, "Discovery Containment Redux," Boston College Law Review 39:747 (1998); Willgang, et al., supra note 38; McKenna and Wiggins, supra note 38.

  47. FRCP Rule 26(b)(2) (visited December 29, 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/Frcp/query=[jump!3A!27rule26!27]/doc/{t282}/pageitems={body}?>.

  48. CPR Rule 31.7(2) (visited December 29, 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.7>.

  49. But see Kate Hilpern, "Heat of the moment: Bullying managers aren’t screaming their insults across the office any longer - they’re messaging them," Independent, 14 March 1999, at 11, discussing a social psychological study commissioned by the Novell corporation on workplace e-mail "flaming" behaviour.

  50. Monotype Corp. PLC v. Int’l Typeface Corp., 43 F. 3d 443 (9th Cir. 1994).

  51. See FRCP Rule 45 (visited 29 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/Frcp/query=[jump!3A!27rule45!27]/doc/{t510}/pageitems={body}?>. This Rule is outside the normal discovery rules, and the proponent has an obligation to show need, to cover reasonable costs, and to limit disruption of the third party’s business.

  52. One computer forensics expert alone, Joan Feldman, is either an author of, contributor to, or subject of 41 of the 215 articles included in this study.

  53. See, e.g., Fennel v. First Step Designs, Ltd. 83 F. 3d 526 (1st Cir. 1996).

  54. One of the leading cases in the United Kingdom on electronic discovery centred on this very problem. Derby & Co. Ltd and others v. Weldon and others (No 9), Ch. Div., [1991] 2 All E.R. 901, [1991] 1 W.L.R. 652.

  55. CPR Part 31.16 (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.16>.

  56. FRCP Rule 16(c), supra note 42.

  57. FRCP Rule 34, Notes of Advisory Committee on 1970 Amendments to Rules (visited 29 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/frcp/query=[jump!3A!27acrule34!27]/doc/{@2811}?>; see also Federal Rules of Evidence, Rule 1001 (visited 29 December 1999) <http://www2.law.cornell.edu/cgi-bin/foliocgi.exe/fre/query=[jump!3A!27rule1001!27]/doc/{@284}?>.

  58. The CPR confronts this problem in a more straight forward manner. Rule 31.20 (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.20> (privileged document inadvertently allowed to be inspected cannot be used by the inspecting party without leave of court); CPR Rule 31.22 (visited 29 December 1999) <http://www.open.gov.uk/lcd/civil/procrules_fin/part-31.htm#rule-31.22> (restricting use of disclosed documents in subsequent proceedings).