Suppose we're in trial circa 1999. We offer a key document marked as Defendants' 123. Our opponent looks it over. "Objection," she cries. "That document is not Defendants' 123; this is Defendants' 123." And then she produces a different document.
Confusion reigns. How can there be two different documents with the same Bates number? The court's reaction is easy to predict: Move on and figure it out, if you can, during a break.
Fast-forward to 2006. By then, many attorneys were aware of the Zubulake v. UBS Warburg opinions. They were filed in 2003 and 2004. By December 1, 2006, the Federal Rules of Civil Procedure had been amended to account for ESI. And in that year, we "created, captured and replicated enough digital information to fill all of the books ever created in the world, 3 million times," as noted by The Sedona Conference Commentary on ESI Evidence & Admissibility (p. 17).