The common use of computers has added a layer of complexity on the discovery process. A request for memos or correspondence may produce little from a party who communicates entirely through electronic means. Document retention policies may have resulted in the destruction of all paper records, but electronic backups may still be available. Companies that use a central computer or server for e-mail or voice mail may have a wealth of information in electronic backups.

To be useful, electronic information must of course be requested and it must be readable. Most form interrogatories and demands for documents do not address electronic discovery. The paralegal should modify these forms to include specific questions about the creations of electronic documents, the backup strategy used by the party and the names of persons knowledgeable about the software used to create documents and backups. This information can be used to follow up on requests for specific documents.

An understanding of electronic evidence is necessary to make an effective request for electronic documents. While the retrieval and viewing of the documents may require professional help, the paralegal should be able to understand the basics of electronic discovery.

First, every document created on a computer contains information about the date and time of creation, the name of the creator, dates of any modifications, and other document information. This information, called metadata, is useful in evaluating documents in relation to the events in the case. Metadata is not available on the printed version of any document.

Second, even when deleted, most documents can be recovered. In an organization with a regular backup strategy, any single document may be saved several different times. Deleting the document from the working computer does not delete the document from the backup. Even when the document is created on a single computer and then deleted, the file may not be destroyed. Experts have been able to recover electronic information from erased or damaged hard drives. Further examination of the computer is always warranted if the data is important to the client's case.

The law related to electronic discovery and electronic evidence is changing rapidly. If you become involved in a case where this type of evidence is important, read the current version of the court rules on the subject. A computer search of all cases in the jurisdiction dealing with the issue is also a good idea. There are many sources of information about the status of the law of electronic discovery and the current technical issues — both online and in print. These resources should be reviewed before embarking on a search for electronic evidence. As always, the costs and rewards of such a search should be carefully considered.