Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?

Abstract

In today's world an increasing proportion of the information subject to discovery under the Federal Rules of Civil Procedure is stored electronically, rather than on traditional media. Despite this development, there has been no widespread debate as to whether the federal discovery rules adequately address the difficult issues that frequently arise during discovery of electronically-stored Information. Rather, practitioners and judges have assumed that the same rules applicable to the discovety of traditional forms of evidence are easily applied to electronic data. Our overarching concern is the continuing validity of that assumption. This Article focuses specifically on how discovery of electronic evidence proceeds under Rule 34. We conclude that Rule 34 has shortcomings in this context, and therefore propose two simple but potentially significant changes in the wording of the Rule itself The Article ends by noting that the legal community must confront several additional complex issues arising from the need to adapt the Federal Rules of Civil Procedure to the new era of electronic information.