Is Digital Different?
Electronic Disclosure and Discovery in Civil Litigation
By Kenneth J. Withers
30 December 1999
II. Civil Discovery in the UK and US
A. Discovery under the Federal Rules of Civil Procedure in the United States
B. Discovery under the Civil Procedure Rules in the United Kingdom
C. Differences and Convergence
III. Is Digital Different?
1. Copy Proliferation
2. Multiple Locations
3. Backup and Archiving
4. The Vampire Effect
5. The Policy Implications of Volume
B. New Forms of Computer-mediated Communication
1. E-mail
a. Volume
b. Character
c. Lack of Management
d. Policy Implications of E-mail
2. Other New Forms of Computer-mediated Communication
a. World Wide Web
b. Chat Rooms and Bulletin Boards
c. Voice Mail and Collaboration Tools
d. The Policy Implications of Other Computer-mediated Communication
1. Metadata
2. Network Records
3. Ghost Data
4. The Policy Implications of New Areas of Discovery
1. The Legacy Data Problem
2. The Policy Implications of Legacy Data
1. Routine Data Destruction
2. Apparent Ease of Wilful Destruction
3. The Policy Implications of Potential Spoliation
F. Electronic Records Management
1. The Demise of Records Management
2. Lack of Corporate and Technological Response
3. The Policy Implications of the Demise of Records Management
G. Form of Production or Disclosure
1. The Costly Relict of Past Practice
2. Inadequacy of Print-outs
3. Advantages to Digital Production
a. Reduced Processing Costs
b. Increased Utility
4. The Policy Implications in the Form of Production
a. Reversing Presumptions
b. Developing Protocols
c. The "Inadvertent Waiver of Privilege" Problem
IV. Areas for Further Research
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