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8 Duke L. & Tech. Rev. [1] (2009-2010)

handle is hein.journals/dltr8 and id is 1 raw text is: ELECTRONICALLY STORED INFORMATION: BALANCING FREE DISCOVERY WITH LIMITS ON ABUSE PATRICIA GROOT1 ABSTRACT The Federal Rules of Civil Procedure (the Rules) have long sought to limit abuses that developed under the traditional presumption favoring free discovery. The 2006 amendments to the Rules are specifically aimed at curbing abuses associated with electronically stored information (ESI), which has become the basic medium of business communications and has provided businesses with overall productivity benefits. The 2006 amendments introduce a new category of electronic evidence that is not reasonably accessible and allow a court to shift the related costs of discovery to the party requesting the information. Cost- shifting, however, creates an incentive for businesses to shelter sensitive data by making it not reasonably accessible. This iBrief argues that the current tests created by the courts for cost- shifting should be reassessed and should include a benefit-shifting component that offsets business savings from using ESI as a storage medium. Rather than treating ESI as exceptional, the Rules should adopt a uniform approach that curbs abuses of all discovery. INTRODUCTION 11 As businesses have begun to keep most records as electronically stored information (ESI), scholars and practitioners have debated how liberal electronic discovery (e-discovery) standards should be.2 Amendments to the Federal Rules of Civil Procedure (the Rules) have sought to reduce the uncertainty, expense, delays and burdens created by Copyright © 2009 by Patricia Groot. 1 Duke University School of Law, J.D. expected 2009; Cornell University, B.S. 2004. I would like to thank Professor Catherine Fisk, Erin Blondel, Jessica Brumley, Brian Eyink, and the editors of the Duke Law and Technology Review for their generous assistance with this iBrief. I would also like to thank my family members for their support and encouragement. 2 Wendy R. Liebowitz, Digital Discovery Starts to Work, NAT'L L.J., Nov. 4, 2002, at 4 (reporting that 93 percent of all information generated was in digital form in 1999).

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