Overview of E-Discovery

Electronic discovery involves exchanging electronically stored information (ESI) as part of a civil litigation case. Under the Federal Rules of Civil Procedure, parties have to put a legal hold on the relevant information to preserve it for discovery. The e-discovery process involves identification, preservation, collection, review, and production of relevant ESI.

With increasing electronic communication, a lot of relevant evidence exists online or in electronic form as emails, text messages, documents, and social media messages. Your case may rely on getting access to the relevant electronic information. Talk to a local e-discovery lawyer for questions about electronic discovery.

What Is E-Discovery?

E-discovery refers to electronic discovery in litigation. Discovery is the legal process where parties exchange information after filing a lawsuit before going to trial.

Historically, discovery involved exchanging a lot of paperwork, documents, and records. Now, companies store many records and information in electronic form. E-discovery may involve handing over files or online access to a secured account to exchange relevant information.

Discovery includes oral, physical, and written information. Types of discovery include:

• E-discovery requests for electronic information
• Interrogatories (answers to questions)
• Depositions (oral testimony)
• Requests for admission
• Requests for documents
• Site examination
• Medical examination

Requests for documents is largely handled electronically. With digital communication and electronic document storage, many records never existed in a paper version. Electronic document requests and sharing is more cost effective and quicker than making and exchanging paper documents.

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Types of Electronically Stored Information (ESI)

There are many types of electronically stored information (ESI). The type of relevant ESI in a case depends on the type of lawsuit and individual situation. Parties can request any information or records that are relevant to the case. Relevant evidence is any information that has a tendency to prove or disprove consequential facts.

For example, a medical malpractice lawsuit will involve electronically stored medical records. A product liability lawsuit can involve technical designs, internal emails, insurance documents, and contracts.

Types of digital evidence in civil litigation include:

• Emails
• Contracts
• Documents
• Voicemails
• Text and instant messages
• Spreadsheets
• Medical records
• Phone records
• Videos
• Images
• Social media postings
• Presentations
• Databases and metadata

There are various ways to store and share ESI. Some companies keep electronic information on computers, hard drives, or in data storage. However, a lot of collected data is on cloud-based systems. Companies may use third-party data collection services to store relevant documents.

The E-Discovery Process Explained

The e-discovery process involves identifying, collecting, and sharing electronic information as part of discovery in legal proceedings. The process can take a long time, especially for multiparty litigation or class actions. It can take months just to identify and sort large volumes of ESI.

The Electronic Discovery Reference Model (EDRM) provides a framework for the e-discovery process. During this process, the parties gather large volumes of information and narrow it down to relevant data to share with opposing counsel. Law firms generally use e-discovery software or vendors to search, sort, and manage large volumes of data.

Identifying Relevant ESI

The e-discovery process starts with information governance to manage data from creation to storage to deletion. The parties must identify any potentially relevant ESI and preserve that information for use in litigation. Gathered ESI is collected and filtered to consolidate the information for review.

Reviewing ESI

During the review process, the legal team identifies which information is relevant and any privileged or protected information. Parties may redact privileged information in relevant documents. After further analysis to cull non-relevant data, the parties produce the data and share the ESI with opposing counsel. E-discovery software uses predictive coding and machine learning to narrow the relevant information.

Presenting ESI to the Court

The parties may then present the information in court to support their case. However, the e-discovery process often continues with disputes over additional information.

The parties may disagree on whether a document is privileged or confidential. A party may believe the other party is withholding additional documents or information. The judge generally handles these disputes in discovery motions. The judge can issue an order to compel the production of electronic documents.

The Importance of Data Preservation

Parties have a duty to preserve information kept in the regular course of business. Spoliation is the legal term for destroying or altering evidence in litigation. Standard data retention policies may delete or clear information after a certain amount of time. However, in anticipation of litigation, parties must preserve any potentially relevant data.

There are strict requirements to preserve relevant data in anticipation of litigation. Under the Federal Rules of Civil Procedure (FRCP), parties can face legal sanctions for failing to preserve ESI.

Failure to take reasonable steps to preserve relevant ESI can result in an adverse inference drawn from the lost information. The judge can instruct a jury that it may presume the information was unfavorable to the party. The court can even enter default judgment against the party for failure to preserve data sources.

Consult an Attorney Experienced in E-Discovery

Depending on the type of legal case, e-discovery may play a major role in your lawsuit. If the other party controls the relevant evidence to prove your case in an electronic form, you can recover that information through e-discovery. That information can disappear with a few key strokes or after the end of a standard data retention period. Experienced legal professionals can make sure that data is preserved and you get access to win your lawsuit.

An experienced lawyer understands the relevant information in your case, how it is stored, and how to get access during e-discovery. For more information about your legal options, contact an experienced e-discovery lawyer.