Electronic discovery, also referred to as eDiscovery or e-Discovery, occurs before a trial, pre-trial, in preparation for the trial. eDiscovery can be considered a specific subcategory of discovery.
During this phase, each of the parties may request the production of electronic evidence, or Electronically Stored Information (ESI), from the other side. During electronic discovery, electronic evidence is turned over for the parties to review.
The legal definition of electronically stored information includes any type of information that is created, used, or stored electronically that requires a computer or other device to access. Electronic discovery laws make nearly all forms of ESI discoverable, meaning that the information may be used as evidence during a trial.
Law enforcement authorities are required to follow search and seizure laws when they are obtaining electronic information from a suspect.
Electronic evidence is a broad term that may include, but is not limited to:
- Audio and video files;
- Website activity and history;
- Computer programming information;
- Geolocation information on devices;
- Information posted on social networking sites;
- Web sites; and
- Digital photos.
The eDiscovery process can be costly and lengthy. It is not uncommon for many thousands of documents to be stored on a single computer.
Once ESI has been identified by both parties, the potentially relevant documents are placed under a legal hold so they cannot be modified or destroyed. These documents are then collected, extracted, and placed into a database where they are analyzed to distinguish between relevant and irrelevant ESI.
Who Does Electronic Discovery?
Electronic discovery is typically performed by an attorney. eDiscovery, however, is very technical and complex because of issues such as encryption and password protection.
Because of this, it may require specific expertise. In addition, it is difficult to perform based on the sheer volume of computer-generated information.
As a result of these issues, more and more attorneys are relying on specialists to conduct their eDiscovery. Many companies now specialize in sifting through the mountains of data provided in order to find the evidence that will be valuable at trial.
What Rules Govern Electronic Discovery?
Electronic discovery is governed and regulated by the Federal Rules of Civil Procedure (FRCP). These rules were amended in 2006 and 2015 in order to specify the guidelines that pertain to eDiscovery.
It is important to note that every state may have electronic discovery rules that are different from the FCRP. The rules that govern eDiscovery vary by state and where the case is being heard.
If the case is in a state court, that state’s evidentiary code or civil code will apply. In federal courts, eDiscovery is governed by the Federal Rules of Civil Procedure (FRCP), as previously noted.
The Supreme Court approved amendments to the FRCP in 2006 concerning electronically stored information. As technology changes and more and more information becomes stored exclusively in electronic formats, the laws that govern e-discovery have been evolving to ensure that electronic evidence remains both accessible and available, as well as being properly protected.
What are the Challenges of eDiscovery?
Discovery is a relatively straightforward process that involves written requests by the parties in a case to furnish information that they deem relevant by describing the documents and records of interest they need to support their claims in a case. The party who receives a request is expected to locate and produce the evidence, or an authenticated copy of the evidence.
The providing party is permitted to withhold or redact items that contain privileged information. They are, however, required to provide a log that describes the withheld or redacted information.
eDiscovery, for the most part, follows the same process. The nature of the documents and potential evidence being requested, however, poses certain challenges, which may include:
- Very large amounts of information;
- Requiring technical knowledge and skill;
- Digital security concerns; and
- Irrelevant requests.
One of the biggest issues with electronic discovery is the amount of information that a party to a case will have to request, send, and analyze. The potential sources of electronically stored information were discussed above.
For example, with an office PC or a laptop, a single computer alone may contain terabytes work of:
- Word documents;
- Activity and history logs; and
- Other types of information.
Even if information is narrowed down to a single email address, there will still be thousands of emails that will have to be analyzed, segregated, and tagged for one case. It would cost attorneys and their staff hundreds of valuable hours to manually click through the many gigabytes and terabytes of ESI on a computer.
Even if an attorney, paralegal, or legal secretary is tech-savvy, they may still find eDiscovery to be a difficult maze of technical jargon and restrictions. Contrary to popular notions, eDiscovery is not as simple as just making copies of emails or documents.
There are a lot of data sources that may not be obvious to the law firm. There may also be network and security restrictions that make it difficult for untrained staff members to navigate.
In addition, the individual collecting the ESI must ensure that it has not been tampered with. In addition, the individual who is collecting the ESI must ensure that the particular data or information that was requested is not deleted.
Even if the ESI is redacted, it may contain valuable or sensitive information. If any of this information is leaked or destroyed, it may have a huge negative impact on the case itself as well as the law firm.
The individual collecting the ESI data must ensure the safety and confidentiality of the data being stored and analyzed. If a data breach occurred, it may be very costly.
The lack of technical knowledge regarding eDiscovery may result in a party being unknowingly harassed or confused by opposing counsel if they are bombarded with requests for irrelevant documents. This action is highly prohibited.
On the other hand, the lack of expertise in eDiscovery may also result in a party collecting large amounts of irrelevant data to process or unintentionally harassing opposing counsel. Due to the challenges, there are companies that offer eDiscovery services.
In addition, eDiscovery solutions software may be available. Whether a law firm should handle its own eDiscovery in-house, use eDiscovery software, or outsourcing eDiscovery services is an issue that may vary by case.
Do I Need a Lawyer?
If you or your business or law firm is facing having to conduct eDiscovery or being required to turn over electronic information for discovery, you are already involved in a legal issue and should already have the assistance of an entertainment attorney. If eDiscovery does become an issue in your case, your current attorney may need to consult with another attorney who is experienced in the electronic discovery process.
As noted above, there are many companies available now that specialize in electronic discovery. These companies can prove to be a valuable asset during the pre-trial discovery phase.
LegalMatch can also assist individuals who are involved in these types of cases by offering in-house training for industry best practices. This includes using LegalMatch online and on the mobile app, in addition to other third-party tools that are being used by the best-performing member lawyers.
These services include eDiscovery software and other services that allow a lawyer to maximize their law firm’s productivity.