Emory Law Journal


Despite the 2006 amendments targeted to accommodate electronic discovery, the Federal Rules of Civil Procedure do not recognize the unique differences between electronic discovery and the discovery of traditional media. One particularly troubling area is the discovery of electronically stored information that is proprietary to a non-party. The Federal Rules provide only for the production of electronically stored information in the “possession, custody, or control” of both parties and non-parties. This Comment explores the application of this standard to electronic networks existing between a party and a non-party. It questions the expansive scope of discovery of data retrievable from such networks and recommends an alternative to protect the interests of non-parties in the discovery process.