Advocacy and Dispute Resolution
551: Electronic Discovery Law and Problem Solving
Electronic discovery ("e-discovery") is the discipline of dealing with digital evidence.
Proficiency in e-discovery has become a must-have skill set for litigators. The Federal Rules of Civil Procedure and Evidence have already been modified twice in the last few years to try to address e-discovery concerns, and additional changes appear imminent. The states are following suit with their own rules. A burgeoning body of case law comes down each year, attempting to define the ethical and legal obligations of parties and counsel when preserving, collecting, reviewing, and producing electronically stored information.
The result is a fundamental change in litigation practice. The enormous costs of e-discovery drive settlement strategy in commercial litigation. Divorce and trade-secret cases hinge on the contents of a party's hard drive. Product liability cases focus on the output of digital sensors. Technology-savvy attorneys use their expertise to contest the authenticity and probative value of key pieces of evidence. Parties seek arbitration or trial venues based on the protections and burden of discovery rules. Individual rights and the integrity of governmental evidence are at risk in criminal cases that rely on digital information, and attorneys and litigants are sanctioned with alarming frequency for failure to properly manage e-discovery. Mastery of e-discovery is a differentiator for clients choosing counsel and for law firms in the hiring of young attorneys.
This is a survey course, to familiarize students with foundational concepts, and to delve into some of the more challenging questions that e-discovery poses. It will also look at the tools lawyers use to manage digital evidence. The course will include a combination of lecture, discussion, and practical application, allowing students an opportunity to explore issues and practice their advocacy and problem solving skills. Readings will consist of case law, statutory and regulatory guidelines, ethical guidelines, research, and white papers. Grading will be based on class participation, group exercises and a theme paper. Prerequisite: . (Rizzolo and Warner)