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Discovery and Spoliation of Electronic Evidence

NCJ Number
Trial Volume: 35 Issue: 13 Dated: December 1999 Pages: 56-64
Anthony Tarricone
Date Published
December 1999
7 pages
Trial lawyers need to target computerized data in their discovery requests and be alert to the possibility of spoliation or suppression of data that are electronically stored or created.
The same standards that apply to traditional paper documents now apply to computer or electronically stored data. The disclosure requirements of the Revised Rule 26 of the Federal Rules of Civil Procedure pertain to both electronic and conventional data. The criteria for admissibility for computer data are the same as for conventional documents, although the form and foundation may differ due to the nature of the evidence. Computer-recorded data generally fall within the broad category of business records and are covered by the rules applicable to business record admissibility. Admissibility of computer data as business records generally requires a showing that the computer data are regular business records created in a manner designed to ensure accuracy and trustworthiness. The actual discovery of computer data is far more complex than is discovery for conventional documents, because computer data are not readily visible or tangible. Courts will undoubtedly apply spoliation principles to computer data in the same way they do for paper documents. However, enforcement of spoliation principles for computer data is more problematic due to the difficulty of ascertaining the existence of computer files. Consequently, counsel should consider notifying opponents of their obligation to preserve computer data and to suspend routine data-purging policies. These and other techniques will reduce the chance of overlooking crucial evidence and will give rise to remedies where spoliation has occurred. Footnotes