Computer Forensics, Electronic Discovery, Ediscovery Data Evidence

REQUEST FOR PRODUCTION OF DOCUMENTS CAN BE A TECHNOLOGY TRAP

Traditionally, litigators obtain relevant documents from their opponent by issuing a Request for Production of Documents. Although the Rules of Civil Procedure mandate the disclosure of relevant, non-privileged documents (this assumes counsel has defined the term document properly), it is a rare case in which an opponent copies all relevant documents and provides them in response to the first Request. Usually, counsel must make several phone calls, write letters, monitor the partial responses provided, and constantly work to obtain as complete a production of documents as possible.

The use of computers to create, process, and store data has placed additional burdens on attorneys. Attorneys now must understand some basic computer concepts in order to determine whether they are receiving a proper production of documents. For example, most attorneys know that “deleting” a document does not remove the document from the computer’s hard drive. The document remains stored on the computer, but is merely rendered “invisible” to the operating system. Because deleted documents are “invisible” to a computer’s operating system, a party cannot produce deleted documents in response to a request for production of documents. In the past, therefore, deleted documents have usually been ignored and left behind; notwithstanding the fact that they were discoverable.

Deleted documents are not the only data that can be rendered invisible to a computer’s operating system, and thereby left out of a standard production response. It is very common to have documents created on a computer using a program that, at the time of the document request, can no longer read the documents. Accounting programs, for example, are updated each year. Some updates are not “legacy”, meaning that the updated program cannot read and interpret old files. In some cases, the program used to create relevant files has been removed from the computer, and the computer simply cannot open or read those files. All this data is invisible to the operating system, insofar as this data will not be retrieved when searching the system for documents responsive to a document request.

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