Corporate defendants, and especially their in-house counsel, shudder when the term electronic discovery or e-discovery is mentioned. Defendants have nightmares about complying with voluminous discovery requests from plaintiffs that target e-mails, databases, hard drives, servers and back-up files. E-discovery places the defendant on the defensive and hampers its ability to develop its defense strategy. It is time for defendants to turn the tables on plaintiffs and make e-discovery a two-way street by serving e-discovery requests on and conducting Internet searches of plaintiffs.
Electronic discovery can be a treasure trove of discoverable information about a plaintiff’s injury, lifestyle, earning capacity, employment experience and academic history. In 2002, approximately 31 billion e-mail messages were sent per day, and that number is expected to grow to 60 billion per day by the year 2006. Grace Bacon, “Fundamentals of Electronic Discovery,” 47 Boston B.J. 18 (2003).
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