How Long Has This Been Going On?
POSTED ON April 23

Most attorneys are surprised when I tell them that forty-five years ago, electronically-stored information (ESI) was validated as relevant to discovery—this, six years before Cray introduced their 5,300 pound computing wonder. Our modern day computing wonder, the 125 gram smartphone which I will discuss at Minnesota CLE on April 29th, 2015 has its own share of eye-openers. In What on Earth is on that Mobile Device and Why Attorneys Should Care? I will profile some of these surprises along with the history of the technology, selected caselaw, device architecture and forensic principles.

I am a litigator and a technologist. Not surprisingly, the history of eDiscovery has always held a lot of interest for me. Some veteran litigators may think electronic discovery—be it on the 5300 behemoth or the 125 gram device–is a relatively recent aspect of discovery. They are wrong. E-discovery has been a “thing” for some time (even before it got its name).

The first formal recognition of electronic discovery came in 1970. That year, Rule 34 of the Federal Rules of Civil Procedure was amended to allow requests for production of “electronically stored information.” The Rule also stated that discovery would be allowed from “other data compilations from which information can be obtained.” Once Rule 34 was amended, the floodgates opened. In 1985, Senior District Judge Thomas Greene of the U.S. District Court for the District of Utah observed that

In the last fifteen years, computerized record keeping has rapidly replaced the less accurate manual systems, and it is no wonder that computer-stored information has become involved in every type of litigation . . . Computers have become so commonplace that most court battles now involve discovery of some type of computer-stored information.

Bills v. Kennecott Corp., 108 F.R.D. 459, 461 (D. Utah 1985).

E-mail was not addressed explicitly until a few years later. A Lexis search shows that the first reported case to use the term “electronic mail” for a means of communication was U.S. v. Midwest Video Corp., 406 U.S. 649 (1972). The reference was just a passing one, however, and it’s not entirely clear what Justice Brennan meant when he used the term in a list of services that could be offered by a cable company. The first apparent reported case that references an electronic communication as evidence was White v. Westinghouse Elec., 862 F.2d 56 (3d Cir. 1988). In that case, the court did not discuss the admissibility of the evidence, or any new issues raised by electronic communications, but accepted without discussion that e-mail messages could be considered on a motion for summary judgment. (This ruling did not help the plaintiff: his age discrimination suit was dismissed). The first reported case to use the term “internet” intentionally (and not as a typo or a synonym for “interwoven”) was U.S. v. Morris, 928 F.2d 504 (2d Cir. 1991), a criminal case that involved hacking into the system.

Handheld devices, such as Blackberries and other PDAs, have been in common use since the early 2000s, but the courts did not discuss them in any opinions for some years. It was not until 2008 that a court explicitly mentioned discovery of data from a portable device. In the case of Asset Funding Group L.L.C. v. Adams & Reese, L.L.P., 2008 U.S. Dist. LEXIS 30348 (E.D. La. 2008), the court ordered the plaintiff to “implement a search by which to obtain or recover responsive emails in the . . . memory storage of relevant PDA, laptop, desktop, server, hard drives, and other electronic devices.” The court seems to have regarded a PDA as being the same as any other computer, and did not devote any time to any new issues that might have been raised.

The easy questions, such as whether you can obtain discovery of e-mail sent from a PDA, have already been answered. New issues in e-discovery—think escalated BYOD and beyond—are coming up all the time. Join us at the Minnesota CLE webinar and we’ll address some of those issues or, as always, call us with your questions and stay tuned into our blog.

About the Author Chris

Author Avatar Christine Chalstrom is the Founder, CEO, and President of Shepherd Data Services, Trustee, Mitchell Hamline Law School and Adviser, Center for Law and Business. She has spoken widely on the Amendments to the Federal Rules of Civil Procedures, Digital Forensics, and eDiscovery best practices. Her credits include presentations to the American Bar Association, Association of Certified e-Discovery Specialists (ACEDS), Corporate Counsel Institute, MN Association of Corporate Counsel, MN Association of Litigation Support Professionals, MN CLE, Mitchell Hamline School of Law, Upper Midwest Employment Law Institute. She is an attorney, programmer, and forensic examiner.