New Legal Problems, Old Legal Solutions: Bailment Theory as the Baseline Data Security Standard of Care Owed to an Opponent’s Data in Discovery

The digitization of discovery has created new data security threats to parties’ proprietary data from third parties. The transfer of electronically stored information (“ESI”), in any instance, is antithetical to data security. The real issues on the duty to protect an opponent’s data arise when there is no protective order in place, or during the negotiations of such protective orders.

This Comment suggests a baseline standard of care that should be owed by a receiving party in discovery to protect the electronic data of the producing party. Where immense value is present in stored data, the receiving party’s duty of care to protect that data is of utmost importance. Establishing a baseline duty of care will provide certainty under the law and will play an essential role in future discovery negotiations.

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