Electronic discovery is a pre-trial phase in which each party can request the production of electronic evidence from the other party. During electronic discovery, most commonly referred to as e-discovery, electronic evidence is turned over for review. Electronic evidence is a broad term, but includes things such as:

  • Documents
  • E-mails
  • Data bases
  • Web sites
  • Digital photos

E-discovery can be a lengthy and costly process, as it’s not uncommon for thousands upon thousands of documents can be stored on a single computer.

Who Does Electronic Discovery?

Electronic discovery is typically done by an attorney. However, e-discovery is extremely technical and complex, due to things like file encryption and password protection, and may require specific expertise. Additionally, e-discovery is difficult due to the sheer volume of computer generated information. As a result, more and more lawyers are turning to specialists to conduct e-discovery. Many companies now specialize in sifting through mountains of data in order to find evidence that will be valuable at trial.

What Rules Govern Electronic Discovery?

Rules pertaining to electronic discovery vary by state and where the case is being heard. In state court, a state’s civil code or evidentiary code will apply. In federal court, e-discovery is governed regulated by the Federal Rules of Civil Procedure (FRCP).

In 2006, the Supreme Court approved amendments to the FRCP concerning electronically stored information. As technology changes and more and more information becomes stored exclusively in an electronic format, the laws concerning e-discovery have been evolving to ensure that electronic evidence remains both accessible and available, as well as properly protected.

Do I Need a Lawyer?

If you or your business is facing the prospect of conducting e-discovery, or having to turn over electronic information for discovery, you are already engaged in legal battle and should already be represented by a business attorney. If e-discovery becomes an issue in your case, you and your current attorney need to contact a lawyer who is experienced in ediscovery. Many companies now specialize in electronic discovery and can be a valuable asset during your pre-trial discovery phase.