When parties in a civil matter want to obtain evidence from their opponents, they must demand discovery and trust that all relevant information will be produced in pristine form. The proliferation of computers in every aspect of business and personal affairs, however, has led to an exception to this rule.
Rule 34 of the Federal Rules of Civil Procedure and corresponding state rules (Pennsylvania’s is Pennsylvania Rule of Civil Procedure 4009.31-33) allow a party, for good cause shown, to search an opponent’s computers (for convenience, I will refer to all digital media as “computers” and to all searches, under federal and state rules, as “Rule 34 searches”). While amendments to the Federal Rules, effective Dec. 1, 2006, have specified that “Electronically Stored Information” must be produced under Rule 34, judicial acceptance of the principal that “inspection” of “property” under Rule 34 includes computer searches so long precedes the announced amendments that protocols for Rule 34 searches have emerged from case law.
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