Wanted: Opinions on E-Discovery

At the recent Judicial College, an attorney presented an excellent seminar on recent trends and issues in e-discovery. It was well attended. He covered topics from preservation of e-discovery to the techniques of various search tools. He recounted the New Jersey Court Rules and soon-to-be-implemented changes in federal rules, which will, for the first time, focus on the burden or expense of the proposed discovery in proportion to its likely benefit.

New Jersey Court Rules that cite to electronic discovery include R. 4:18-1(a)(1), the basic request for documents, including “electronically stored information,” and R. 4:18-(1)(b)(1), which specifies that the request may specify the form in which the electronically stored information should be produced. R. 1:9-2, authorizing notices in lieu of subpoenas, may require production of electronically stored information, but the protections of that section are available for a court to quash or modify the subpoena if compliance would be unreasonable or oppressive. A litigant may rely on R. 4:18-1 (b)(4) with respect to objections of electronically stored material in accordance with R. 4:10-2(e) and R. 4:10-2(f). The latter provision indicates that a responding party need not provide electronically stored discovery from sources that are “not reasonably accessible because of undue burden or cost” unless the party seeking the discovery establishes good cause, subject to concerns of frequency or extent of use of discovery as provided in R. 4:10-2(g).