The other thing about electronic discovery and the federal rules that was on my mind yesterday, as I mentioned in yesterday’s post, is emails, with the thoughts provoked by this article here on discovering emails from opposing parties. Now one mistake people often make when they are first confronted with the federal e-discovery rules is thinking that they govern and are really about the production of emails, and this mistake is understandable, given that nothing has become more ubiquitous in business life than email. But there is, with one exception, nothing special about email when it comes to the production of documents. Instead, as this article points out, emails should be seen as nothing more than correspondence or other types of routine business documents that must be produced if they concern the case; the easiest way to think about it is to view them as though they were letters, and think about whether they must be produced in the same way one would analyze whether a collection of letters is relevant and must be produced.
The only difference is, and this is where the e-discovery rules come into play, is that correspondence can only be produced if it physically was saved somewhere in a file; for cases involving events from some time in the past, it may well be the case that many letters have been discarded or were never kept, and thus they cannot be produced. For purposes of the litigation, it is as if they never existed, except and to the extent you can get someone to testify about their contents, and even then only if that testimony about the contents would be admissible. Otherwise, those letters may as well never have existed, at least for purposes of litigation.
And this is where email differs, because while someone may have long ago deleted emails from their own in-boxes, they may still exist elsewhere in a network or may be stored in back up formats. And what the electronic discovery rules essentially require is that, in that case, a party to litigation not treat the deleted emails as though they were discarded written correspondence, but instead go back into the computer system and the back up storage and either locate and produce those emails, or document that it would be just too dang expensive to do so. And the way the decisions applying the federal electronic discovery rules are going, I would expect it to be the first option, and wouldn’t count on successfully invoking the second. This, in turn, is why electronic discovery vendors and e-discovery lawyers are routinely advising companies now to be proactive when it comes to retention of such computerized information as emails, so that they are saved and sorted even in the absence of litigation, in a manner allowing their – relatively – easy access and searching if a lawsuit ever is instituted.