Part Four in a multi-part series on the topic.
Searching for evidence in the form of email, text messages and instant messaging is increasingly important in lawsuits. However, requests for this type of evidence during the discovery phase can be seen as a fishing exercise and place undue burdens on the company who has to produce such, especially if the requests are not tailored to specific categories of information and limited. As a result, judges, applying rules of evidence, may be inclined to limit such discovery. For example, see the Model Order Regarding E-Discovery in Patent Cases, issued by an Advisory Council on the Federal Circuit. In states such as California, courts often balance the requesting party’s right to obtain broad discovery with the privacy rights guaranteed by the state constitution, especially when email is used for personal as well as business purposes.
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