S A MEANS of business and personal communication, e-mail is unparalleled – it is magnificently efficient and inexpensive. However, when it is the subject of document requests in litigation, e-mail is neither cheap nor quick. Responding to discovery requests for the production of e-mail and other forms of electronic data brings with it cost and other technical considerations that can create a major trap for the unwary litigant.
While e-mail production and “paper discovery” have in the past been treated by courts similarly, the burdens of production of some electronic data are so great as to warrant a re-examination of some commonly held presumptions. And indeed, some courts have recently begun to make important distinctions in how electronic and the more traditional “hard copy” discovery should be approached by the litigants – distinctions which can provide important guidance for the practitioner.
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