St. Mary's Law Journal


This Article examines recent developments in several areas of electronic discovery. It discusses spoliation, cost shifting, form of production, and recent developments in the case law. Additionally, this Article discusses the Texas Rules of Civil Procedure, revisions to the Federal Rules of Civil Procedure and local rules, as well as recommendations of the American Bar Association (ABA) regarding electronic discovery. In Zubulake v. UBS Warburg LLC, I-VI, Judge Scheindlin of the Southern District of New York, set out her vision for the management of electronic discovery. It is a sobering vision, with clarified responsibilities for counsel. Increasing the role of electronic information will likely result in additional up-front expenses as law offices will need to acquire the ability to facilitate electronic discovery. In today’s litigation, it is important to provide for the discovery of electronic information, which has the potential to reduce the frequency and intensity of discovery disputes concerning electronic information. Some states, including Texas, incorporate procedural rules governing electronic discovery. Both federal and state courts are just now looking at similar additions and modifications to the Federal Rules of Civil Procedure. The interpretation of the new and revised Federal Rules has not yet begun. Even without the revisions to the Federal Rules, however, courts are beginning to fashion constructs to govern electronic discovery. The many new insights in the materials recited herein are likely just the beginning of the efforts of the bar and the courts to gain control over the discovery of the electronic information. Litigation counsel should watch for these developments as they will likely further define procedures for managing the discovery of electronic information.


St. Mary's University School of Law