Originally from Handbook on International Commercial Arbitration

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It is well recognised that the vast majority of documents are now held electronically rather than in paper form. Electronic documents include emails, word processing files, databases web pages, and text or sms messages. The tendency to copy many recipients to an email message, for example, considerably increases the volume of electronic documents and the ability to store them relatively cheaply and easily without physical storage space results in many more documents being kept than might have been the case with paper copies. In equivalent paper storage the volumes are nearly beyond comprehension. The use of electronic communication distinguishes it from paper documents. Much electronic communication is a substitute for face-to-face meetings or telephone calls. It can often be very informal and hence of quite different “look-and-feel” to paper documents. Finally, there is permanence to electronic communication that does not exist in face-to-face meetings or telephone calls. The issues are not, however, new. The English High Court recognised that electronic documents would be within the scope of discovery in 1975. The Federal Rules of Civil Procedure have included electronic documents since 1993.

The location of paper documents is relatively easy. There will typically be a master file and whilst individuals working on a team may have “shadow files” nearly all the paper will be in the main project file(s). In contrast, electronic data can be more widespread. The ability to forward and copy creates many different storage locations: A sends an email to B copied to C and D. C forwards his copy to E who in turn forwards it to F who replies to A and so the chain can continue. If the original message is retained in the body of the email, the traffic will be apparent but some organisations (anxious to maintain their environmental credentials—lest it has to be printed out) omit the text of an email being replied to.