Why Worry About Discovery?

In litigation, discovery occurs when lawyers on either side of a case exchange electronic data, witness testimony, and other relevant material. The discovery process is an important part of litigation, as it provides counsel with the ‘‘stuff’’ to build a case and possibly create spoliation problems for opponents. The courts have supported electronic discovery for over three decades, ever since the Federal Rules of Civil Procedure were changed in 1970 to account for electronic records. ^[7]

With instant messaging expected to surpass e-mail as the electronic communications tool of choice in the workplace by 2005,^[8] employers should anticipate litigators’ interest in IM growing right along with it its use.

^[7]Ibid.

^[8]Tim McDonald, ‘‘Instant Messaging Enterprise Security Ramps Up,’’ NewsFactor Network (May 31, 2002).