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Electronic discovery (e-discovery) is a growing concern for organizations from a legal, regulatory, and compliance perspective. E-discovery refers to the discovery of an organization’s electronically stored information (ESI). ESI can include such information as emails, instant messages, office application documents such as Microsoft Word and Excel. Currently as the United States Federal Rules of Civil Procedure stand the E-Discovery Rules require companies to comply with civil litigation requests for legacy data as well as implement legal hold to ensure the appropriate preservation of data going forward. At first glance, it appears that the current e-discovery rules are potentially ripe for abuse, including submitting frivolous lawsuits that can cost the defendant organizations millions of dollars in personnel resources, time, and technical support costs, to an invasion of privacy of proprietary or confidential data under the guise of legal disclosure. And yet since it’s inception in 2006 it also seems that within most cases, the e-discovery rules were appropriately applied by reasonable judgments. According to a recent 2008 study nearly 70% of corporations felt that they were not adequately prepared to comply with e-discovery rules and entering into litigation if a lawsuit was presented. The purpose of this paper is to further the ongoing discussion of the benefits and potential pitfalls of e-discovery and to argue the need for additional research on e-discovery rules.

A Discussion on E-Discovery: An Appropriate Rule of Civil Procedure or a Tool for Frivolous Arguments and Invasion of Privacy?