Electronic Evidence: Producing Electronic Data And Paper Copies

In the discovery phase of modern lawsuits, parties often face the production of electronic evidence or data, in addition to the production of paper documents. Under general principles and the Federal Rules of Civil Procedure, both types of evidence are considered "writings" or "things" that must be produced to the extent relevant or likely to lead to the production of relevant evidence. However, production of both electronic data and paper copies gives rise to a number of discovery issues, including; who should bear the burden of such productions, whether such productions are unnecessarily cumulative, and whether such productions cause confidentiality and trade secret problems that must be resolved by entry of a protective order governing the scope of the production.

The following questions have been addressed in this article:

If paper documents, or "hard copies" are produced in response to an opponent's discovery request, or during the initial disclosures and production exchange that is required in most jurisdictions, is electronic data required as well, in order to meet the discovery obligation?
Which party should bear the burden of producing both electronic and paper copies, when such a production is arguably cumulative?
Is it advisable to stand on cumulative and burden objections, and refuse to produce both the electronic data and the paper copies as a way of testing the resolve of opposing counsel?
What should an attorney advise a client when either the paper copies and/or the electronic records have been destroyed, as in the case where paper copies were shredded or e-mails were deleted?

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