Volume 35:1 (Summer 2011)

Unringing a Bell: E-Discovery and Waiver in the Twenty-first Century


Brandon J. Demyan


Introduction: With the number of emails nearing three hundred billion a year and only increasing in the foreseeable future, electronic discovery is becoming exceedingly present in litigation. In fact, discovery of emails is present in nearly one hundred percent of both criminal and civil federal cases and major employment disputes. Discovery becomes difficult when vast quantities of electronically stored information (ESI) are present, increasing the chance of error; as one court put it, “[w]here discovery is extensive, mistakes are inevitable.” In addition to the chance of errors, privilege review in a case involving ESI is time-consuming and expensive. These risks associated with e-discovery precipitated Congress and courts to pass new rules clarifying the confusing mish-mash of common law precedents in the field. The understanding of these new evidentiary and procedural rules is necessary since “[e]lectronic documents are no less subject to disclosure than paper records.” This Comment focuses on the development of these new e-discovery rules concerning inadvertent disclosure. First, it analyzes the common law approaches that are the underpinnings for the current set of rules. Next, it explains the rationale of two new e-discovery rules enacted by Congress. Finally, it dissects the current role of e-vendors in litigation and concludes with a detailed analysis of decisions interpreting these new rules and their impact on litigation.