What is E-Discovery?
A little history
Before we define e-discovery, it's helpful to take a step back and look at its roots. Discovery (minus the 'e') is a procedure by which parties in a legal matter are required to exchange information and evidence with one another. They do this through a variety of means, including exchanges of documents. In the “olden days" parties exchanged paper documents – often times many, many boxes of them. Over time, those paper documents were largely replaced with computer generated content, and the process of discovery was forever fundamentally changed.
Enter e-discovery. First thing to know - if you didn't already - the “e" stands for electronic. E-Discovery is simply that process of discovery in civil litigation that involves information in electronic formats – known as electronically stored information (ESI). There are many different types of ESI that may be sought in e-discovery, ranging from common data sources, such as basic email and Microsoft® Word documents, to more arcane ones like files from a company-specific database.
A final point here is that there is a big difference between criminal e-discovery and civil e-discovery. For the purposes of this guide we are going to focus on civil e-discovery.
If you are interested in the criminal variety of e-discovery, the law firm Crowell moring has published a useful overview.
How does E-Discovery Work?
We won't go into too much detail here, because we have an entire section devoted to the various e-discovery stages. One thing to know right off the bat is that e-discovery is not a single action – like taking a deposition or filing a motion - rather - e-discovery is a process comprised of many linked actions that runs from the time a lawsuit is foreseeable all the way until documents are presented in court (in the event the case actually goes to trial).
The e-discovery process is set in motion as soon as the litigation is reasonably foreseeable, which triggers the legal duty to preserve potentially relevant ESI. Attorneys from both sides determine the scope of e-discovery, identify and preserve (lockdown) the relevant ESI, and make e-discovery requests and challenges. Once parameters are set, ESI is then collected, analyzed, and formatted for use in court. Don't let this simplified description fool you. E-discovery is a dynamic, complex process that challenges even the most experienced legal and technical minds.
Why should you care about E-Discovery?
It may not evoke the classic scene of lawyers battling it out before a jury in a courtroom or reside at the top of any law school syllabus, but e-discovery is a hugely important legal process. A ruling on a billion dollar class-action could hinge on the contents of just a few emails ('smoking guns' as they're often described).
With e-discovery serving such a vital function to our entire legal justice system, that function has become more formalized over the last decade. The Federal Rules of Civil Procedure (FRCP), a set of regulations that specify procedures for civil legal suits within United States federal court system, were amended in 2005 to recognize e-discovery's growing importance. We'll get more into the specifics of those rules, along with some additional proposed amendments, in the next section. Our friends at K&L Gates also have a nice summary here.
If complying with the rules isn't enough motivation, e-discovery is increasingly viewed as part of a lawyer's sacred duty to provide competent representation. It's not outlandish to suggest that in the not so distant future, a lawyer who doesn't know e-discovery will be tantamount to a surgeon who doesn't know how to use a scalpel. The practice of law fundamentally depends on e-discovery competency.
The legal community has a very long way to come. In Exterro's 2015 "Federal Judges Survey on E-Discovery Best Practices and Trends," not a single one of the 22 responding judges said they fully agreed with the statement that the typical attorney possesses the subject matter knowledge (legal and technical) required to effectively counsel clients on e-discovery matters. If that's not a wakeup call, we don't know what is.
Why is e-discovery such a struggle?
So if we all agree that e-discovery is important, why do legal professionals tend to hate it so much?
There is an old joke among lawyers that the reason they started studying law in the first place was simply to avoid math and science. That's probably not universally true, but it's undeniable that e-discovery has burdened many legal professionals with responsibilities and tasks for which they aren't particularly comfortable, knowledgeable, or prepared.
Making matters worse, e-discovery is barely addressed at all in most law schools, so legal professionals are forced to learn it on the fly. Much like learning to ride a bike, there are is a lot frustration and the occasional bruise along the way.
E-Discovery is also unique in that it combines both legal and technical disciplines. A strong, defensible e-discovery process requires close collaboration between a company's legal and IT teams, a professional odd couple if there ever was one. Some describe the two as "speaking different languages." That's probably why communication gaps between the two departments are a frequently cited e-discovery complaint among legal and IT professionals alike.
We could go on and on and list other common complaints and challenges, but the bottom line is that e-discovery is hard work. And, guess what? It's only getting harder as ESI becomes exponentially more diverse, voluminous, and widespread. But have no fear, we're here to help.
That's entirely up to you. The next section of the guide explores the e-discovery process in general. You are also welcome to jump to any of the specific sections listed below. We hope you enjoy the journey.