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8 Duke L. & Tech. Rev. [1] (2008)

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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