Both the law and the profession have raced to keep pace with technological changes that define the early 21st century. While these changes have had a profound impact on every practice area, issues inherent in the transition from hard-copy to electronically stored information (ESI) came quickly to the fore in the context of civil discovery. After years of common law development, amendments to the rules of procedure, and sustained effort of practitioners, jurists and academics to address these issues, a principled, rules-based discovery regime eventually brought some order to the chaos that had been causing litigation costs to soar, and striking terror in the hearts of attorneys traversing the previously uncharted terrain of ESI. The journey, detailed in Electronically Stored Information in Maryland Courts, contains lessons for all.
Virtually all information is now stored electronically, resulting in an exponential increase in the amount of available information, regardless of setting. Rather than being stored on paper with few copies in circulation, any item of information currently resides in many places – on laptop and desktop computers, mainframes, cell phones and detachable drives, in the cloud, in emails and text messages, and on social media. Where in the past there were boxes of documents subject to production in major litigation, there are now terabyte mountains that would literally reach well into the stratosphere if stacked in printed form.
Unlike a tangible paper record, ESI is variable in nature, as changes can occur simply by opening, copying or moving a document among devices. Files may contain metadata which can show when the document was created or changed, and who it was that created, altered or viewed its content. ESI is searchable, not simply for words of interest, but also for evidence of its provenance. Seemingly hidden code might contain privileged or confidential information indiscernible on hard-copy, which in turn raises new ethical questions for the practitioner who might go looking for or stumble upon it.
These and other characteristics of ESI create minefields for corporate attorneys and litigators who now require a basic understanding of ESI technology, and how it can be used for and against their clients in litigation. New policies and procedures are needed for information governance, preservation and collection, and to protect privacy and confidentiality. In litigation, novel issues of authentication and admissibility have become a constant. Maryland lawyers must also keep current with the law as it relates to ESI, including changes to the Federal Rules of Civil Procedure in 2006 and 2015, and to the sometimes divergent Maryland Rules in 2008, as well as the common law applying the principles underlying these rules and rules of evidence, and potential sanctions for missteps in discovery.
Written primarily by Maryland lawyers and judges long active in this arena, it provides historical context, case citations, forms and hypotheticals to allow any practitioner to acquire a basic foundation for the use of ESI in state and federal courts, or to supplement their prior experience.
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