In addition to the new Major Treatises Topic, eDiscovery
, here is a mini-research guide on e-Discovery resources. The intent of this guide is not to be comprehensive but to announce the posting of a new major treatises topic and provide some additional resources to jump start your investigation of this topic.
The Hon. Shira A. Scheindlin, United States District Judge of the Southern District of New York, is a recognized authority in this area. She defines discovery in Electronic Discovery and Digital Evidence in a Nutshell
as “the process of identifying, preserving, collecting, analyzing, and producing evidence in legal actions
.” Therefore, e-discovery focuses on “the discovery of information that is stored electronically
.” This includes email, messaging systems, social networking content, data, anything stored on desktops, laptops, tablets, file servers, mainframes, smart phones to supercomputers, in the cloud, cache memory, magnetic disks USB flash drives. In e-discovery, this is defined as ESI, or electronically stored information. (Electronic Discovery and Digital Evidence in a Nutshell
, p. 11). Lawyers involved in this type of discovery need to be aware of the vast variety of ESI to be found in any organization to effectively plan and recover digital evidence. The use of electronic devices and storing information digitally is increasing exponentially and we can surely expect this specialized area of discovery for litigation to expand as well.
Major Treatises on e-Discovery
Michael R. Arkfeld, Electronic Discovery and Evidence
(4th ed., 2014).
Adam I. Cohen & David J. Lender, Electronic Discovery: Law and Practice
(CCH) (2d ed., 2014-date).
Jay E. Grenig & William C. Gleisner, III, eDiscovery & Digital Evidence
Amy Jane Longo, Usama Kahf and Allan D. Johnson, Electronic Discovery Practice Under the Federal Rules
George L. Paul, The Discovery Revolution: e-Discovery Amendments to the Federal Rules of Civil Procedure
Law Clinic Offices KF9650 .P38 2006
George L. Paul, Foundations of Digital Evidence (2008).
Law Library Stacks KF8902 .E42P38 2008
PLI Electronic Discovery Deskbook
(2d ed., 2015).
Barbara J. Rothstein, Ronald J. Hedges, & Elizabeth C. Wiggins, Managing Discovery of Electronic Information: A Pocket Guide for Judges
(2d ed., 2012).
Print: Law Library Gov Docs JU 12.8:EL 2.
Federal Judicial Center online
Shira A. Scheindlin, Electronic Discovery and Digital Evidence in a Nutshell
(2d ed., 2016).
Print: KF8902 .E42S34 2016
Though there are not currently any multi-volume treatises devoted entirely to the topic of e-Discovery, there are numerous references to procedures for e-Discovery in existing multi-volume practice and procedure treatises. In some respects, we are looking at existing practices and procedures anew through the lens of e-Discovery. Here are a few examples:
Patrick E. Higginbotham, “§ 26.09 6-26 Discovery of Electronically Stored Information
,” 6-26 Moore's Federal Practice – Civil
§ 26.09 (2015). Lexis Advance.
: Discovering and Admitting Computer-Based Evidence
,” Weinstein’s Federal Evidence
(2015). Lexis Advance.
Richard L. Marcus “§ 2218 Electronically Stored Information
,” 8B Fed. Prac. & Proc. Civ.
§ 2218 (3d ed.). Westlaw.
Current Awareness Resources
Digital Discovery & e-Evidence
. (Frequency: Monthly).
. Bloomberg Law
eDiscovery Resource Center
. (Frequency: Monthly).
Sedona Conference Documents on E-Discovery
The Sedona Conference is a group of practitioners, judges and others whose mission is to design principles, propose rules and advise the profession on e-discovery concerns. Link to their conference documents in the BBNA eDiscovery Resource Center: Sedona Conference Center
ABA Section of Litigation: E-Discovery
The Sedona Conference
The Sedona Conference (TSC) is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights.
Research Guides and Bibliographies
Besides using Google Scholar
for historical Law Review articles on this topic, see also:
Paul Richert, Electronic Discovery Bibliography
An excellent recent resource guide on this topic is:
Timothy L. Coggins, Discovery E-Discovery: A Resources Guide
, Va Law.
, Dec. 2013, at 20-23, 27, 52.
Selected Recent Law Review Articles
Steven C. Bennett, Models for Use of Mediation in E-Discovery
, 9 Tenn. J.L & Pol’y
Steven C. Bennett, E-Discovery: Reasonable Search, Proportionality, Cooperation, and Advancing Technology
, 30 J. Marshall J. Info. Tech. & Privacy L
. 433 (2014).
Richard Esenberg, A Modest Proposal For Human Limitations on Cyberdiscovery
, 64 Fla. L. Rev.
Hon. Joy Flowers Conti & Richard N. Lettieri, E-Discovery Ethics: Emerging Standards of Technological Competence
, Fed. Law
., Oct.-Nov. 2015, at 28-33, 44.
Ralph C. Losey, Predictive Coding and the Proportionality Doctrine: A Marriage Made in Big Data
, 26 Regent U. L. Rev.
Jonathan M. Redgrave, Keltie Hays Peay, and K.E. Mathea, Understanding and Contextualizing Precedents in E-Discovery: The Illusion of Stare Decisis and Best Practices to Avoid Reliance on Outdated Guidance
, 20 Rich. J.L. & Tech.
The Sedona Conference Glossary: E-Discovery & Digital Information Management
(Fourth Edition, 15 Sedona Conf. J.
Lance Shapiro, E-Discovery: Bargaining Bytes for Settlement
, 27 Geo. J. Legal Ethics
Search Terms for legal indexes, HeinOnline, etc.
Disclosure Discovery (Law)
Discovery (Law)—United States—History
Electronically stored information
Information storage & retrieval systems—Law & legislation
Proportionality in law
Right of privacy
Social media—Law and legislation
SSRN is a multidisciplinary online repository of forthcoming and published research, including a repository of papers and articles on legal scholarship. Through SSRN’s Legal Scholarship Network (LSN) you may find articles not yet published that may cover the newest trends in e-Discovery.