What is Electronic Data Discovery?

Electronic Discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.

Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence.  Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence (e.g. the date and time a document was written could be useful in a copyright case).  The preservation of metadata from electronic documents creates special challenges to prevent spoliation.  In the United States, at the federal level, Electronic Discovery is governed by common law, case law and specific statutes, but primarily by the Federal Rules of Civil Procedure (FRCP), including amendments effective December 1, 2006, and December 1, 2015.  In addition, state law and regulatory agencies increasingly also address issues relating to Electronic Discovery.  Other jurisdictions around the world also have rules relating to Electronic Discovery, including Part 31 of the Civil Procedure Rules in England and Wales.

(Above taken from Wikipedia)

When did Electronic Data Discovery started?

The beginning of e-discovery is often traced back to 2005, when the US Supreme Court amended the FRCP to include a category for electronic records.  These amendments specifically designated emails and instant messages as records that could be archived and produced, if relevant.  These changes to the FRCP required civil litigants to comply with proper methods for retaining and managing ESI.

In 2015, more amendments were issued to amend further the FRCP, including the ground rules that now govern e-discovery.  As the FRCP rules specify, ESI is subject to discovery in litigation to the same extent as paper records, and failure to respond properly to discovery requests can lead to dire consequences.

While e-discovery burst onto the scene at roughly the same time in the US and the UK, the countries handle electronic data discovery (EDD) differently.  In the UK, where electronic discovery is known as electronic disclosure, the Practice Direction and the Civil Procedure Rules govern e-discovery.  The Practice Direction requires that the parties to the litigation must discuss how e-disclosure should be carried out at an early stage in the proceedings, before the first case-management conference.

The US is considered to be the acknowledged leader in computer forensics and e-discovery for two reasons: the American legal landscape is more litigious than in the UK, and unlike in England, the loser doesn’t necessarily pay the winner’s costs.

There are many different electronic formats, including text, images, calendar files, databases, spreadsheets, audio files, animation, websites, email, voicemail, social-media posts, computer programs and raw data that may be sought in e-discovery.  Litigators can review e-discovery materials in various formats, including hard copies, raw data, Portable Document Format (PDF), Tagged Image File Format (TIFF), and Joint Photographic Experts Group (JPEG) images.

(Above excerpt was taken from allaboutlaw.co.uk)

Why use Electronic Discovery instead of traditional discovery?

Traditional discovery—which commonly consists of interrogatories, requests for production of documents, requests for admissions, depositions, subpoenas duces tecum, and physical and mental examinations (if applicable)—is notorious for one thing: mountains of paper.  It wasn’t uncommon for lawyers to dedicate whole rooms in their firms to housing boxes of paper-based evidence.

In e-discovery, the paper is replaced by technology in terms of search, retrieval, review and production to the opposing party.  Although e-discovery hasn’t completely done away with boxes filled with paper—after all, technology can still occasionally fail—the transmission of such documents is, by and large, done electronically.

When the legal world was still primarily a paper world, a solicitor could rely on clients and witnesses to provide most of the potentially relevant documents, and lawyers didn’t usually feel personally responsible for manually reviewing a corporation’s documents.  The same fundamental principles apply in this new electronic world, and lawyers shouldn’t necessarily feel that they need to do their own e-discovery—there will be information custodians and IT professionals to render assistance whenever necessary.

The benefits and drawbacks of e-discovery.  About 15 years ago, most law firms began to embrace (or at least acknowledge) the digital age, which brought with it the discovery of electronic data.  E-discovery brings with it numerous advantages and disadvantages. First, some of the advantages:

• Through automated methods, electronic documents and electronic media can be searched very quickly with a high degree of accuracy.
• E-discovery software may be capable of searching through far more documents than humans could ever review manually.
• The very nature of electronic data makes it well-suited to investigation.  Whereas paper documents must be reviewed manually, digital data can be electronically searched with ease and is difficult or impossible to destroy completely, especially if it appears on multiple hard drives and digital files within a network.
• Metadata and system data provide additional information about electronic documents and computer-user actions that aren’t possible with traditional paper discovery.

Now for the disadvantages:

• Attorneys are now required to devote considerable time and effort to developing and understanding new approaches involving e-discovery, even though they are experienced and skilled at traditional paper discovery.
• The volume and distribution of electronic documents can make them difficult to find.
• The complexity of new and unfamiliar technology can sometimes require computer forensic experts.
• Parties can be sanctioned for improper document retention practices based on rapidly changing criteria.
• Since e-discovery combines both legal and technical disciplines but isn’t typically fully addressed (if at all) at most law schools, legal professionals are often tasked with learning it on the fly.
• The high cost of e-discovery is an ongoing concern for many, but with a solid strategy and the right tools, the overall cost can be significantly reduced.

(Above excerpt was taken from allaboutlaw.co.uk)

How is Electronic Discovery performed?

Electronic Discovery is performed by using the steps outlined in the Electronic Discovery Reference Model (EDRM), which divides the legal e-discovery process into nine stages:

• Information Management: Implement data governance processes that alleviate risk and expenses in the event of an e-discovery request.
• Identification: Locate sources of information to determine exactly what the data is, and how it needs to be managed.
• Preservation: Ensure potentially e-discovery-relevant ESI is properly stored using measures such as retention and deletion schedules.
• Collection: Gather information for e-discovery use.
• Processing: Reduce the volume of the relevant ESI and convert it for review and analysis.
• Review: Determine the data's e-discovery relevance.
• Analysis: Evaluate the ESI for content and context, including key patterns and topics.
• Production: Deliver the ESI to relevant parties.
• Presentation: Display data findings at depositions, hearings, trials, etc., to elicit further information, validate existing facts or positions or persuade a jury.

Through any it’s stages, activities should be trackable and documented using a “chain of custody” process.

The EDRM was developed in 2005 by George Socha Jr., founder of St. Paul, Minn.-based Socha Consulting LLC, and Tom Gelbmann, managing director of Gelbmann & Associates in Roseville, Minnesota.  The standards are distributed by EDRM, LLC, a coalition of consumers and providers that develop e-discovery and information governance resources.

Excerpts compiled by Eleazer Rivera of CsteMs, Inc.