Abstract
Like everything else, the Computer Age has changed civil litigation in the U.S. The broad discovery allowed in American courts has become even broader as they have confronted Electronic Discovery. To date, it has been handled within the existing framework for American discovery, with some special tailoring of provisions for the specific problems it presents. Electronic communications are affecting the organization of American law firms, however, with offshoring of legal work gaining prominence. The handling of trials has begun to change as well, both because of problems regarding the admissibility of digital information as evidence and because electronic presentations have begun to affect the mode of trial. Although there has been change, there is also continuity; the American system of civil justice will still be “exceptional” after these changes are absorbed.
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Notes
- 1.
For discussion of the general effect of computer technology on the American legal profession, see R. Marcus, “The Electronic Lawyer,” DePaul Law Review 58 (2009) 263–310; R. Marcus, “The Impact of Computers on the Legal Profession: Evolution or Revolution?” Northwestern Law Review 102 (2008): 1827–68.
- 2.
Since 1996, I have been Associate Reporter of the Advisory Committee on Civil Rules of the Judicial Conference of the U.S., the body that develops proposals to change the Federal Rules of Civil Procedure, which govern conduct of civil litigation in the U.S. Federal Courts. I write here solely in my personal capacity, and not as a representative of this Committee or anyone else.
- 3.
For discussion of this exceptionalism, see R. Marcus, “Putting American Exceptionalism into a Globalized Context,” American Journal of Comparative Law 53 (2005): 709–40.
- 4.
See generally R. Marcus, “Retooling American Discovery for the Twenty-First Century: Toward a New World Order?” Tulane Journal of International & Comparative Law 7 (1999): 153–99.
- 5.
G. Born, International Litigation in United States Courts, 3rd ed. (The Hague: Kluwer, 1996), 849, 856–71.
- 6.
Carpenter v. Winn, 221 U.S. 533, 540 (1911).
- 7.
S. Subrin, “Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules,” Boston College Law Review 39 (1998): 691–745, 719.
- 8.
Hickman v. Taylor, 329 U.S. 495, 507 (1947).
- 9.
For discussion of American reliance on private enforcement of public law, see S. Fahrang, The Litigation State (Princeton/Oxford: Princeton U. Press, 2010) (chronicling reliance on private rather than public enforcement of employment discrimination law in the U.S.).
- 10.
Consider the views of a leading judge: “Congress has elected to use the private suit, private attorney-general as an enforcing mechanism for the antitrust laws, the securities laws, environmental laws, civil rights and more. In the main, the plaintiff in these suits must discovery his evidence from the defendant. Calibration of discovery is calibration of the level of enforcement of the social policy set by Congress.”
P. Higginbotham, “Foreword,” Alabama Law Review 49 (1997): 1–6, 4–5.
- 11.
See J. Friedenthal, “A Divided Supreme Court Adopts Discovery Amendments to the Federal Rules of Civil Procedure,” California Law Review 69 (1981): 806–20, 818 (arguing that discovery itself had fueled growth in substantive law in these areas).
- 12.
G. Hazard, “From Whom No Secrets Are Kept,” Texas Law Review 76 (1998): 1665–94, 1694.
- 13.
For a discussion of this effort, see R. Marcus, “Discovery Containment Redux,” Boston College Law Review 39 (1998): 727–84.
- 14.
See Fed. R. Civ. P. 26(b)(2)(C) (setting forth grounds for judicial limitation of discovery that is disproportional).
- 15.
See Fed. R. Civ. P. 26(d); (f) (providing for moratorium on formal discovery until the discovery conference is held).
- 16.
See R. Marcus, “Reining in the American Litigator: The New Role of American Judges,” Hastings International & Comparative Law Review 27 (2003): 3–30.
- 17.
See, e.g., Fed. R. Evid. 801; 802 (providing that hearsay not generally admissible unless it fits within an exception to the hearsay rule).
- 18.
See, e.g., Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (directing the judge to act as a “gatekeeper” with regard to expert scientific evidence).
- 19.
For a collection of such studies by a number of authors on the common theme “The Vanishing Trial,” see Journal of Empirical Legal Studies 1 (2004): 459–984.
- 20.
For discussion, see M. Redish, “Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix,” Stanford Law Review 57 (2005): 1329–59.
- 21.
J. Kwuon and K. Wan, “High Stakes for Missteps in EDD,” New Jersey Law Journal, December 31, 2007, E2.
- 22.
See S. Scheindlin and D. Capra, Electronic Discovery and Digital Evidence (St Paul, MN: West Publishing Company, 2009).
- 23.
See Fed. R. Civ. P. 34 (1970 version) (authorizing discovery of “data compilations”).
- 24.
Bills v. Kennecott Corp. 108F.R.D. 459, 462 (D. Utah 1985).
- 25.
Federal Judicial Center, Manual for Complex Litigation, 3rd ed. (Washington, DC: Federal Judicial Center, 1995), § 21.446.
- 26.
For discussion of these points, see R. Marcus, “Confronting the Future: Coping with Discovery of Electronic Materials,” Law & Contemporary Problems 62 (2001): 253–81.
- 27.
See, e.g., Thompson v. United States Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 98 (D. Md. 2003): “Under Rules 26(b)(2) [regarding proportionality] and 26(c) [regarding protective orders], a court is provided abundant resources to tailor discovery requests to avoid unfair burden or expense and yet assure fair disclosure of important information. The options available are limited only by the court’s own imagination and the quality and quantity of factual information provided the judge by the parties to be used by the court in evaluating the Rule 26(b)(2) [proportionality] factors.”
- 28.
For discussion of these points, see R. Marcus, “Only Yesterday: Reflections on Rulemaking Responses to E-Discovery,” Fordham Law Review 73 (2004): 1–21.
- 29.
See, e.g., GTFM, Inc. v. Wal-Mart Stores, Inc., 2000 WL 335558 (S.D.N.Y., March 30, 2000), in which outside counsel for defendant was informed by the client’s contact person that ESI requested by plaintiffs was no longer in existence and so informed the court. A year later, during the deposition of a member of defendant’s Information Technology staff, it was revealed that the information had indeed existed at the time the representation to the court was made, but had subsequently been deleted. Sanctions were imposed on defendant.
- 30.
On privilege protection in the pre E-Discovery era, see R. Marcus, “The Perils of Privilege: Waiver and the Litigator,” Michigan Law Review 84 (1986): 1605–55.
- 31.
See Fed. R. Civ. P. 26(f) (directing the parties to confer regarding a discovery plan and to discuss preservation of discoverable information and any issues regarding discovery of electronically stored information).
- 32.
See Fed. R. Civ. P. 34(b) (permitting a responding party to object to a specified form for production, and directing that in any event the responding party specify what form it will use before producing ESI, while providing further that it need not produce in a different form if it does so).
- 33.
See Fed. R. Civ. P. 26(b)(2)(B).
- 34.
See Fed. R. Civ. P. 37(e).
- 35.
See Fed. R. Civ. P. 26(b)(5)(B).
- 36.
See Fed. R. Evid. 502.
- 37.
See T. Willging and E. Lee, “Their Words: Attorney Views About Costs and Procedures,” in Federal Civil Litigation 3 (Washington, DC: Federal Judicial Center, March 2010) (reporting that most attorneys interviewed had little experience with E-Discovery).
- 38.
This is a reference to a reported comment by “Deep Throat,” who leaked details about the Watergate scandal to Washington Post reporters in the 1970s, and told the reporters to “follow the money.”
- 39.
E. Byron, “Computer Forensics Sleuths Help Find Fraud,” Wall Street Journal, March 18, 2003, B1. See also Dusting for Digital Fingerprints, The Economist, March 12, 2005, 32.
- 40.
J. Krause, “Discovery Channels,” American Bar Association Journal, July 2002, 49, 49–50; see also A. Berenson, “Once Again, Spitzer Follows E-Mail Trail,” New York Times, October 18, 2004, C1 (describing investigation of Marsh & McLennan); Dusting for Digital Fingerprints, The Economist, March 12, 2005, 32 (describing use of forensic computer techniques to solve crimes); O. Kerr, “Searches and Seizures in a Digital World,” Harvard Law Review 119 (2005): 531–85 (exploring Fourth Amendment complications caused by increasing importance of digital evidence in criminal cases).
- 41.
P. Geier, “A Defense Win in Enron Country,” National Law Journal, January 23, 2006, 6.
- 42.
M. Neubauer, “Mastering the Blind Cross-Examination,” Litigation 35 (2009): 23–6, 25.
- 43.
For discussion, see R. Marcus, “E-Discovery Beyond the Federal Rules,” University of Baltimore Law Review 37 (2008): 321–47, 339–40 (describing the issues).
- 44.
N. Varchaver, “The Perils of E-mail,” Fortune, February 17, 2003, 96.
- 45.
See E. Ben-Yahuda, “Sending Unwise E-Mails Can Be Hazardous to Your Career,” San Francisco Daily Journal, October 11, 2004, 4 (describing formal efforts by companies to teach their employees to be guarded in what the write in email).
- 46.
See A. LaVallee, “This Email Will Self-Destruct,” Wall Street Journal, August 31, 2006, D1.
- 47.
See K. Livingston, “Battle Over Big Brother,” San Francisco Recorder, August 30, 2001. 1.
- 48.
See J. Schwartz, “Snoop Software Gains Power and Raises Privacy Concerns,” New York Times, October 10, 2003. A1.
- 49.
M. Arkfeld, “Growing Pains for the Amended Federal Rules,” The New Horizons of E-Discovery (2007).
- 50.
J. Kwuon and K. Wan, “High Stakes for Missteps in EDD,” National Law Journal, December 14, 2007.
- 51.
K. Schmitt, “McDermott Plans to Fill Cheap Seats,” San Francisco Recorder, November 1, 2007, 1.
- 52.
See Z. Elinson, “GCs Embracing Outsourced Work,” San Francisco Recorder, January 24, 2008, 1. See also “Inside Out: Working the Split Shift at an Indian Legal Outsourcing Company,” American Lawyer, March 2008, 20 (reporting an estimate that the number of people working at outsourcing firms in India tripled from 1,800 to 6,000 lawyers between March, 2005, and the end of 2006, and that document review projects are typically billed at $15–25 per hour).
- 53.
D. Eviatar, “Howrey Opens India Office for Document Management,” San Francisco Recorder, February 11, 2008, 3.
- 54.
See J. Noble, “Dangers in E-Discovery,” Legal Times, June 3, 2002, 15 (identifying “trying to go it alone” as the most common mistake in regard to E-Discovery).
- 55.
See E. Kircher-Allen, “Electronic Expertise,” California Lawyer, October 2007, 9 (reporting that “even some E-Discovery consultants caution against the overuse of outside experts. Except in complex cases, ‘a paralegal who has been sent to a workshop and trained on a piece of software can probably handle e-discovery’ ”).
- 56.
T. McNichol, “The E-Vendors Cometh,” California Lawyer, February, 2008, 37.
- 57.
As a practical matter, however, the rules of evidence are applied in a less restrictive manner in court trials.
- 58.
See G. Paul, Foundations of Digital Evidence (Chicago, IL: American Bar Association, 2008).
- 59.
Id. at v (Foreword by Hon. John M. Facciola, U.S. Magistrate Judge, District of the District of Columbia).
- 60.
Scott v. Harris, 550 U.S. 372 (2007).
- 61.
See D. Kahan, D. Hoffman and D. Braman, “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism,” Harvard Law Review 122 (2009): 837–906 (arguing that jurors might have reacted differently to this videotape).
- 62.
See, e.g., Fed. R. Evid. 1002 (“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.”).
- 63.
See, e.g., Fed. R. Evid. 1003 (providing that “[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”).
- 64.
Fed. R. Evid. 1001(4).
- 65.
See Fed. R. Evid. 901(a) (providing that authentication is “a condition precedent to admissibility” and must include “evidence sufficient to support a finding that the matter in question is what its proponent claims”).
- 66.
See Fed. R. Evid. 901(b)(1).
- 67.
See G. Paul, Foundations of Digital Evidence (Chicago, IL: American Bar Association, 2008), 33–113.
- 68.
Fed. R. Evid. 801(c).
- 69.
See Fed. R. Evid. 803(6): “A memorandum report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation…”
For discussion of the application of this exception to digital evidence, see Paul, supra note 67, at 113–50.
- 70.
E.g., Fed. R. Evid. 801(d)(2) (for statements of a party opponent, as for an e-mail from a party offered against that party); 803(1) (present sense impression for a statement describing something being observed by the declarant, as in an email message); 803(3) (present sense impression for a statement by a person about his or her present physical or mental condition, including the intention to do an act in the future); 803(4) (statements for purposes of medical diagnosis, such as e-mail messages to a medical provider); 803(8) (public records).
- 71.
Much of this discussion is drawn from R. Marcus, “E-Discovery and Beyond: Toward Brave New World or 1984,” Federal Rules Decisions 236 (2006): 598–638.
- 72.
P. Carrington, “Virtual Civil Litigation: A Visit to John Bunyan’s Celestial City,” Columbia Law Review 98 (1998): 1516–37.
- 73.
Id. at 1524.
- 74.
Id. at 1526.
- 75.
Id. at 1524.
- 76.
See Fed. R. Civ. P. 43(a) (providing that in “compelling circumstances” the court may permit a witness to testify by contemporaneous transmission from a distant location).
- 77.
Some see the introduction of these techniques as a momentous development. A law professor, for example, says that “[t]he use of electronic visuals is as significant as the introduction of cross-examination in the 1870s and formal discovery in the 1930s. This will be the greatest change in advocacy in the career of anybody alive or about to be conceived.” L. Brennan, “Pitching the Gen-X Jury: As Jurors Get Younger, Law Schools Are Thinking More Like MTV,” in National Law Journal, June 7, 2004, 1 (quoting Prof. Stephen Lubet of Northwestern University); see also H. Gottlieb, “Plaintiffs’ Lawyers Have High-tech Advantage in Courtroom,” San Francisco Recorder, February 28, 2006, 1 (reporting that plaintiff lawyers are more likely to use a “$1,500 a day technical director hired to spike the presentation with computer-generated graphics”).
- 78.
W. Schwarzer, “Reforming Jury Trials,” Federal Rules Decisions 132 (1991): 575–96, 588 (1991).
- 79.
Lucien v. McLennard, 95 F.R.D. 525, 526 n.2 (N.D. Ill. 1982).
- 80.
For an argument in favor of this technique by the judge who pioneered it in Ohio, see J. McCrystal and A. Maschari, “Will Electronic Technology Take the Witness Stand?” University of Toledo Law Review 11 (1980): 239–54.
- 81.
See G. Solomon, “Techniques for Shortening Trials,” Federal Rules Decisions 65 (1975): 485–95.
- 82.
C. Richey, “A Modern Management Technique for Trial Courts to Improve the Quality of Justice: Requiring Direct Testimony to Be Submitted in Written Form Prior to Trial,” Georgetown Law Journal 72 (1983): 73–93; see also Kuntz v. Sea Eagle, 199 F.R.D. 665 (D. Haw. 2001) (denying plaintiff’s motion that he be allowed to present direct evidence orally instead of in writing).
- 83.
W. Schwarzer, A. Hirsch and D. Barrans, “The Analysis and Decision of Summary Judgement Motions,” Federal Rules Decisions 139 (1992): 441–523, 471, 474 (1992); see also Acuff-Rose Music, Inc. v. Jostens, Inc., 155 F.3d 140 (2d Cir. 1998) (upholding use of this approach if the parties forgo their right to a full trial).
- 84.
See Fantozzi v. Sandusky Cement Prod. Co., 597 N.E.2d 474, 480 (Ohio S. Ct. 1992).
- 85.
C. Wright, A. Miller and R. Marcus, Federal Practice & Procedure, 3d ed. (St Paul, MN: West Publishing Co., 2010), § 2142 at 626.
- 86.
See Fed. R. Civ. P. 43(a) (permitting testimony by “contemporaneous transmission for a different location” only in “compelling circumstances”).
- 87.
See, e.g. J. Solovy and R. Byman, “Confronting the Fact that Jurors do Research,” National Law Journal, November 30, 2009, 23 (arguing that trial attorneys should assume that, despite judges’ instructions not to do so, jurors will engage in illicit E-Discovery on their own).
- 88.
See, e.g., C. Miller, “New Bill Targets Web-Surfing Jurors,” San Francisco Recorder, February 22, 2010, 1 (describing legislation introduced in the California Legislature to provide punishment for jurors who use electronic means to gather improper information or discuss the case in a forbidden manner).
- 89.
C. Buxton and M. Glover, “Managing a Big Case Down to Size,” Litigation Magazine 15 (1989): 22–5, 22–3.
- 90.
A. Lagomarsino, “Strategic Use of Video Depositions,” Nevada Lawyer 11 (2005): 8.
- 91.
Science App. Int’l Corp. v. Superior Court, 46 Cal.Rptr.2d 332, 338 (Cal. Ct. App. 1995).
- 92.
F. Lederer, “The Road to the Virtual Courtroom? A Consideration of Today’s – and Tomorrow’s – High-Technology Courtrooms,” South Carolina Law Review 50 (1999): 799–844, 819.
- 93.
See M. Roth, “Comment, Laissez-Faire Videoconferencing: Remote Witness Testimony and Adversarial Truth,” University of California at Los Angeles Law Review 48 (2000): 185–219, 202.
- 94.
Stine v. Marathon Oil Co., 976 F.2d 254 (5th Cir. 1992).
- 95.
Id. at 267.
- 96.
A. Poulin, “Criminal Justice and Videoconferencing: The Remote Defendant,” Tulane Law Review 78 (2004): 1089–167, 1111.
- 97.
Electronic Discovery in the New York State Courts: A Report to the Chief Judge and Chief Administrative Judge 6 (Feb. 2010).
- 98.
Id. at 8.
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Marcus, R.L. (2012). The Impact of Digital Information on American Evidence-Gathering and Trial – The Straw That Breaks the Camel’s Back?. In: Kengyel, M., Nemessányi, Z. (eds) Electronic Technology and Civil Procedure. Ius Gentium: Comparative Perspectives on Law and Justice, vol 15. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4072-3_2
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