The Next Generation of Electronic Discovery

Just as general counsel and their outside litigation attorneys are getting familiar with the challenges of electronic discovery, the definition of what is discoverable has begun to broaden. In most of the literature on electronic discovery, the list of places where discoverable information resides is fairly standard and includes computer hard drives, servers, CD-ROMs, floppy disks, zip disks, backup media, e-mail servers, laptops, home computers, and hand-held devices. But, technology keeps changing to meet the visions people have for communicating with each other. As a result, emerging technologies facilitating business communications such as instant messaging (IM), chat rooms, Internet mail, streaming video, spontaneous conferencing, PDA/mobile phone blends, and digital voicemail are quickly becoming the next generation for electronic discovery.

The rules for pre-trial discovery have proven elastic enough to adapt to electronic discovery. Therefore, the rules will make newer technologies just as susceptible to the same inspection as hard drives, servers, peripherals and backup media. The courts are just at the cusp of providing specific guidance for emerging technology discovery. Until more guidance is available, it is imperative for general counsel to take an active role in understanding the technologies being introduced into the organization and the potential liability and discovery risk each poses for the company.