Well, here’s a curious thought. Do the electronic discovery amendments to the federal rules reach cell phone text messages? A recent article from BNA’s Digital Discovery and E-Evidence reporter put that thought in my head, and I am sure that the authors of that article have something to say on that point. As for me, well, if discovery obligations run that far, then its just more evidence, from where I sit, that courts really have to think about how far electronic discovery should be allowed to range, and should be prepared in any given case to set some limits, even if, horror of horrors to a litigator, it means that some otherwise relevant material might not be subject to discovery.
In the old days of paper discovery, it was acceptable to understand the limits of discovery as being limited only by the imagination of the party seeking discovery, and to allow discovery so long as only the most minimal requirement of relevance – that the documents sought might lead to admissible evidence – was satisfied. But as the example of cell phone text messages shows, with electronic communications and broad electronic dispersal of information, trying to run down every electronic communication or document that could even conceivably lead to admissible evidence is transparently a herculean task. And this is why, as I have said before, courts really need to start developing a jurisprudence of electronic discovery that requires real weighing of the costs to the producing party against the benefit to the requesting party before allowing broad electronic discovery, when the party from whom discovery is sought objects to the burden imposed on it.