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     The evolution of technology has changed the landscape of what attorneys should request in discovery. The advent of email and documents attached and modified on web-based programs dictates that attorneys become proficient in the basics of computer technology. In the past five years, it has become common for clients to correspond on significant matters through electronic mail. On many occasions, a document that may be the subject of a dispute may have gone through multiple revisions prior to being finalized. The drafts of the document are routinely attached to a simple email or accessed on an Extranet, which allows multiple individuals to view the document and make changes. Therefore, it can be important to have all "versions" of the document when litigating a case.
     In addition, cases have proven that email communication can be the most damaging "written testimony" in a case. Information contained in emails is often not well thought out and contains off-the-cuff type comments that can be very helpful in litigation. This article is intended to give the reader a brief overview of the basics of electronic discovery. There are countless articles on the subject, and the law is evolving almost as quickly as the technology is advancing.

Types of electronic data
     The Arkansas practitioner should be aware of four types of electronic data: active data, cloned data, back-up data, and residual data.¹ While the authors acknowledge that too much background information will undoubtedly result in a quick turn of the page to the next article, it is important to understand that each type of data raises a unique discovery issue.
     Active data is electronic data readily accessible to the user.² It includes items such as saved documents and e-mails. As it is common for the electronic versions of these items to contain information that does not appear in the corresponding hard copy, a party seeking that additional information may request a copy of or the right to examine the electronic versions.
     Cloned data is an automatically backed-up file generally stored on the hard drive of the user's computer, as opposed to on a network server.³ As most computer users know, word-processing programs routinely and automatically save open documents to protect the document in the event of a system failure or unintended shutdown of the computer. While a document might later be deleted in its final form, the automatically saved version can still exist on the hard drive of the individual user's computer.
     Back-up data is the result of an intended save by the user.⁴ Such efforts are routinely made by companies that perform sweeping back-ups of their entire system to avoid data loss in the event of a massive failure or to establish a chronology of the system.⁵
     Finally, residual data encompasses files that appear to be deleted, but are recoverable.⁶ For example, if a user deletes a document from the hard drive of her computer, the computer makes the memory previously occupied by that file available for use by a newly created file. Therefore, until the file is written over by a new file, it still exists.

Applicable rules of procedure and resulting cases
     The cornerstone of electronic discovery is understanding why it is "black letter law that computerized data is discoverable if relevant."⁷ The answer is simple, as courts have routinely treated computer data as a "document." This usage, in turn, implicates various rules of procedure governing Arkansas and federal civil discovery:
• Fed. R. Civ. P. 26(a)(1)(B). Although not required in state court, the federal mandatory requirement of initial disclosures include "documents, data compilations, and tangible things . . . that the disclosing party may use to support its claims or defenses . . .."
• Fed. R. Civ. P. 26(b)(1) and Ark. R. Civ. P. 26(b)(1). This subsection of Rule 26, virtually identical in the federal and Arkansas rule for the purposes of this article, provides that discovery may be obtained on "any matter, not privileged, which is relevant to the issues in the pending actions." Its coverage extends to "the existence, description, nature, custody, condition, identity and location of any books, documents, or other tangible things . . .." The well-known caveat in this subsection is that the matter itself need not be admissible at trial as long as it appears to be "reasonably calculated to lead to the discovery of admissible evidence."
• Fed. R. Civ. P. 26(b)(2). The federal limitations on discovery, although not explicitly stated in the Arkansas rule, are routinely asserted by practitioners. The rule allows the court to limit discovery if it determines that the discovery sought is unreasonably cumulative or duplicative, if it is obtainable from another source that is less burdensome or expensive, if the party seeking the discovery had ample means to obtain the information itself, or if the burden or expense of the discovery sought outweighs its likely benefit.
• Fed. R. Civ. P. 34(a) and Ark. R. Civ. P. 34(a). Both the Arkansas and federal versions of this rule define "documents" as including "writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form." The language regarding "data compilations" was added in the 1970 amendment to the federal Rule 34 to keep the rule "in accord with changing technology."⁸
     Based upon the existing structure of these rules, two questions are raised. First, does current technology (such as e-mail, the internet, wireless, hand-held devices such as a Blackberry, cache files and cookies) fit within what the rules consider to be a "document"? And second, are the existing rules adequate to address the daily evolution of these technologies? Conventional wisdom and a formidable list of recent court rulings seem to say yes, with a particular focus upon the scope of Rule 34. As most electronic information is stored, by design, in the form of binary numerals, or a series of zeros and ones inside the computer, floppy disk, or CD, all electronic information may be considered to be a "data compilation" and subject to Rule 34.⁹
     The current standing of case law interpreting this issue further demonstrates the common use of Rules 26 and 34 in requiring disclosure of electronic and computer "documents." In Super Film of America, Inc. v. UCB Films, Inc.,¹⁰ the court considered a motion to compel electronic versions of e-mail, documents, databases and spreadsheets.¹¹ In its findings, the district court relied upon the holding in a prior case to find that "computerized data and other electronically-recorded information" under Fed. R. Civ. P. 26(a)(1)(B) include "voice mail messages and files, back-up voice mail files, e-mail messages and files, backup e-mail files, deleted e mails, data files, program files, backup and archival tapes, temporary files, system history files, web site information stored in textual, graphical or audio format, web site log files, cache files, cookies, and other electronically recorded information."¹²
     Similarly, in Linnen v. A.H. Robins Co.,¹³ the Massachusetts Superior Court found a "document" to include "any record or compilation of information of any kind or description however made, produced, or reproduced, or stored whether by hand or by any electronic, photographic, magnetic, optical, mechanical, computer or other process or technology.¹⁴ Documents can take the form of any medium on which information can be stored, including, without limitation, computer memory, computer disk, film, paper, photographs, tape recordings, video tapes and video discs.¹⁵
     Even deleted information may be subject to disclosure. In McPeek v. Ashcroft,¹⁶ the Department of Justice ("DOJ") was required by the District of Columbia district court to search not only electronic records but also back-up files to ascertain whether the back-up files contained information deleted from active files, and required the DOJ to recreate some of the information on the back-up files.¹⁷ However, due to the costs involved and the uncertainty as to the relevance of the discovered information, the court limited the recreation of the data to e-mails within a one-year period.¹⁸
     Electronic mail is commonly subject to disclosure pursuant to these rules. In Playboy Enter., Inc. v. Welles,¹⁹ a former Playmate of the Month and Year was required to provide access to her computer to create a mirror copy of its hard drive and to retrieve deleted e-mails in a suit by Playboy for the improper use of its trademark.²⁰ In Gale v. Levi Strauss & Co.,²¹ a FLSA suit, the district court required the production of an e-mail referring to uncompensated overtime work, which later served as evidence sufficient to deny a motion for summary judgment by the offending company.²² Finally, in Ashjari v. Nynex Corp.,²³ reliance placed upon a produced e-mail provided necessary support of an employment discrimination claim.²⁴

Objections and other protection
     While the scope of production appears to be broad, there are protections available to the party against whom discovery is sought. The most common objections are based upon the grounds of relevance, undue burden or oppression, and privilege.
Relevance
     While acknowledging the provision of Rule 26 that allows a broader definition of relevance in the context of discovery than in the determination of the actual admissibility of evidence, the request for electronic data must bear some relevance to the subject matter of the case in question. For example, parties routinely object to a basic discovery request for information that "might be" hidden "somewhere" by another party on the basis of relevance.²⁵ Similarly, broad requests for the production of hard drives, floppy disks, or even printouts of what is included on the hard drives have been refused on the basis of relevance in the absence of a stated, particularized need for the information sought.²⁶
Overbreadth
     The sweeping requests for the production of hard drives and floppy disks discussed in the previous section also may be challenged on the basis of breadth.²⁷ Rule 34 is helpful in this regard as well, as courts have frequently found that it does not provide unfettered access to discovery if other, less burdensome alternatives are available.²⁸ As with written materials, closely review each discovery request for broad phrases such as "all documents on a corporation's hard drive."²⁹
Undue burden
     The same balancing factors that determine the propriety of a request for written material and the objection based upon undue burden apply to requests for electronic data: the relative costs and burdens to the parties, the stated need for the information, and the benefit provided by the production of the data. So what have courts deemed to be unduly burdensome? Most notable cases that deny request for information based upon burden focus upon the accompanying costs to produce the data. For example, in Koch v. Koch Industries,³⁰ the Tenth Circuit found that the expense associated with complying with the discovery request outweighed the probability of finding evidence of wrongdoing.³¹ However, the court in that case focused upon what it described as plaintiff's abuse of the discovery process in attempting to use discovery as a "fishing expedition."³² Therefore, many courts have rejected the arguments of parties that discovery is unduly burdensome or impossible due to cost³³ but will commonly reduce scope of production to reduce the costs involved.³⁴
     Due to the importance of this issue, given the great expense routinely associated with the production of electronic data, a landmark case established a seven-factor test to assist in the determination of which party should pay for electronic discovery. In Zubulake v. UBS Warburg, LLC,³⁵ the list created by Judge Shira Scheindlin is described as follows, in order of importance: 1) the specificity of the discovery request, 2) the availability of the information from other sources, 3) the total cost compared to the resources each party has, 4) the total cost of producing the requested documents compared to the amount in controversy, 5) the relative ability of each party to control costs, 6) the importance of the issues at stake in the litigation, and 7) the relative benefits to the parties of getting the information.³⁶ The test has been applauded for its ability to consider the importance of liberal discovery while acknowledging the often extreme expense associated from producing electronic data.³⁷
Privilege
     Electronic data may contain privileged attorney-client information or information subject to the attorney-work product privilege afforded by Rule 26(b)(3) of the Arkansas and Federal Rules of Civil Procedure. Courts, legislatures, and the American Bar Association have all recognized a need to maintain the attorney-client privilege in the face of electronic discovery. In fact, amendments to the ABA Civil Discovery Standards were presented to the House of Delegates in final form and approved in August of 2004. The amendments specifically include a new standard which suggests three alternate routes to address waiver concerns in the context of the use of third-party experts to extract data and further recommends procedures to implement these methods. New York State also recently added a rule to its Civil Practice Laws and Rules that states that "No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because a person necessary for the delivery or facilitation of such electronic communication may be able to access the content of the communication."³⁸ Moreover, while some courts have focused on the fact of disclosure to find a lack of confidentiality, the so-called strict responsibility rule, this approach is being abandoned in favor of a case-by-case analysis of the facts surrounding an inadvertent disclosure.³⁹

Spoliation concerns
     The issue of spoliation of electronic evidence is complex enough to warrant an entire article, given the issues of knowledge, attorney negligence, the circumstances surrounding the destruction, and the relevance of the destroyed material.⁴⁰ However, as a practical matter, all electronic data should be preserved at the time of filing of the complaint, to include the cessation of routine deletion of e-mail or duplicate copies of information.⁴¹ As with the destruction of written evidence relevant to the case at hand, monetary sanctions may result from the deletion or destruction of electronic data after the commencement of a lawsuit.

Conclusion
     So what should the practitioner do when faced with propounding or responding to electronic discovery? According to computer forensics and legal technology experts, there are steps you can take to streamline the electronic discovery process.⁴² If you are seeking electronic data, send a preservation of evidence letter at the commencement of litigation. Make your discovery requests clear, concise, precise, and direct. If applicable, depose persons involved in the computer systems of the party or company, such as the system administrator. Ask even routine witnesses about their computing habits or practices. Perhaps most importantly, examine the cost of hiring a forensic computer expert given your client's resources and the degree of skill necessary to obtain the electronic information sought. If you represent clients with electronic data that might be subject to future discovery requests, advise your clients to institute a well-reasoned document retention policy in advance of litigation or threats of litigation. Consider the need for a specific protective order to avoid disclosure of confidential or trade secret information or inadvertent waiver of the attorney-client or work-product privilege. Maintain the integrity of your data by establishing a chain of custody to prove that no information was improperly added or deleted. Perhaps most importantly, look for guidance in the wealth of articles and discussions of this process that are available to every practitioner.

Endnotes
1. Susan C. Sears, Electronic Discovery in Litigation ­ Issue Highlights, KENTUCKY BAR ASS'N UPDATE, 2001, at 311; see also Bart Greenwald and Amanda G. Main, Knowledge is the Key when Dealing with Discovery of Electronic Evidence, BUS. TORTS 3, June 2002.
2. Sears, supra note 1, at 314.
3. Id.
4. Id. at 315.
5. Id.
6. Id.
7. Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 U.S. Dist. LEXIS 16355 at *4 (S.D.N.Y. Nov. 3, 1995).
8. Fed. R. Civ. P. 34 advisory committee's notes, 1970 amend.
9. See Hon. Shira Scheindlin & Jeffrey Rabkin, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?, 41 B.C. L. REV. 327, 333 (2000); James P. Flynn and Sheldon M. Finkelstein, A Primer on "E-vide-n.c.e., 28 LITIGATION 34, 35 (2002).
10. 219 F.R.D. 649 (D. Kansas 2004).
11. Id. at 650.
12. Id. at 657, citing Kleiner v. Burns, 2000 U.S. Dist. LEXIS 21850, * 12 (D. Kan. Dec. 22, 2000).
13. 1999 Mass. Super. LEXIS 240 (Mass. Super. Jan. 4, 2000).
14. Id. at *4. n. 3.
15. Id.
16. 202 F.R.D. 31 (D.D.C. 2001).
17. Id. at 32.
18. Id. at 32-34.
19. 60 F. Supp.2d 1050 (S.D. Cal. 1999).
20. Id. at 1058.
21. 1999 U.S. Dist. LEXIS 9387 (N.D. Ga. April 26, 1999).
22. Id. at *9-11.
23. 1998 U.S. Dist. LEXIS 397 (S.D. N.Y. Jan. 20, 1998).
24. Id. at *8-10.
25. See In re Horowitz, 482 F.2d 72 (2d Cir. 1973), cert. denied, 414 U.S. 867 (1973).
26. See Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121 (M.D.N.C. 1989)(finding that the seeking party failed to show a particularized need for information sought based upon differences between stated claims and scope of information requested); In re Grand Jury Subpoena Duces Tecum, Dated Nov. 15, 1993, 846 F.Supp. 11 (S.D.N.Y. 1994)("A relevance objection is proper when a request for an entire computer hard drive, or similar component, when the hard drive itself is not part of the dispute's subject matter, contains irrelevant information, and the request could be stated in terms of specific categories of information.").
27. See In re Grand Jury Subpoena Duces Tecum, supra note 12. The district court quashed the subpoena in that case, finding that it sought irrelevant information and that its scope was unreasonably broad.
28. Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440, 441 (D. Or. 1999)(holding that plaintiffs were not entitled to unrestricted access to defendants' computer system given available methods of specifically identifying information sought).
29. Howard f. Strongin, Electronic Discovery and Disclosure, FOR THE DEFENSE, June 2004, at 28.
30. 203 F.3d 1202 (10th Cir. 2000).
31. Id. at 1238.
32. Id.
33. See Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985)(holding that cost was not excessive when burden in obtaining data would be greater for plaintiff due to lack of possession of the computer equipment in question); Dunn v. Midwestern Indem., 88 F.R.D. 191 (S.D. Ohio 1980)(rejecting claims of burden due to cost or time required to produce information requested).
34. See Sattar v. Motorola, Inc., 138 F.R.D. 1164 (7th Cir. 1998)(describing efforts to accommodate discovery request by avoiding printing costs in favor of providing a readable, electronic version of the information requested). Id.
35. 217 F.R.D. 309 (S.D.N.Y. 2003).
36. Id. at 322.
37. See Xpedior Credit Trust v. Credit Suisse First Boston Inc., 309 F. Supp.2d 459, 465 (S.D. N.Y. 2003).
38. See N.Y. C.P.L.R. § 4548.
39. See Alldread v. City of Grenada, 988 F.2d 1425 (5th Cir. 1993).
40. For a complete, well-reasoned discussion of these issues, see Hon. Jacob P. Hart and Anna Marie Plum, Litigating the Production of Electronic Media, THE PRACTICAL LITIGATOR, July 2001, at 40.
41. Id.
42. See Sharon D. Nelson and John W. Simek, Finding and Securing Electronic Evidence, 2002. Ms. Nelson and Mr. Simek are the President and Vice President of Sensei Enterprises, Inc., a computer forensics and legal technology firm located in Fairfax, Virginia. Id.•