What Is Electronic Discovery (E-Discovery, e discovery, or eDiscovery)?
Electronic discovery (also known as e-discovery, e discovery, or eDiscovery) is a procedure by which parties involved in a legal case preserve, collect, review, and exchange information in electronic formats for the purpose of using it as evidence.
There are many different electronic formats - or electronically stored information (ESI), as it is known in the e-discovery world - that may be sought in e-discovery, ranging from common data sources, such as basic email and Microsoft documents, to more modern ones, like social media, instant messaging, and smartphone applications, to more arcane ones like files from a company-specific database.
It's worth noting 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.
For a deeper dive into criminal e-discovery, consider the Federal Judicial Committee's Criminal E-Discovery: A Pocket Guide for Judges.
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 begins when a lawsuit is reasonably foreseeable and lasts until documents are presented in court (in the event the case actually goes to trial).
Once litigation is reasonably foreseeable, potential litigants the legal duty to preserve potentially relevant ESI. Attorneys from both sides determine the scope of e-discovery, identify and preserve the relevant ESI, and make e-discovery requests and challenges of the opposing. Once parameters are set, ESI is then collected, analyzed, and formatted for use in court. While that description sounds simple, e-discovery is a dynamic, complex process that poses challenges to legal and IT teams alike. However, as e-discovery technology has matured, it is possible now to manage e-discovery from the requirement to preserve to document production in a single technology platform.
Why should you care about E-Discovery?
While not typically the stuff of Hollywood courtroom dramas, e-discovery is a hugely important legal process. A ruling on a billion dollar class-action can hinge on the contents of just a few emails, often described as "smoking guns.".
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, amended in 2005 to recognize e-discovery's growing importance, and then again in 2015 to rein in some of the excesses and legal gamesmanship that arose as a result of the 2005 amendments. If we do say so ourselves, our FRCP & E-Discovery: A Layman's Guide resource provides an in-depth overview of the Rules.
If complying with the rules isn't enough motivation, e-discovery is increasingly viewed as part of a lawyer's ethical 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 Model Rules of Professional Conduct now include that attorneys should "keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology" under Rule 1.1, and most states require lawyers to be technically competent.
The legal community has a very long way to come. In Exterro's recent 4th Annual Federal Judges Survey only 23% of federal judges agreed with the statement, "The typical attorney possesses the legal and technical subject matter expertise required to effectively counsel clients on e-discovery matters." After four years, the federal judiciary is still not convinced..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 struggle with 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 burdens many legal professionals and tasks for which they aren't particularly knowledgeable or prepared.
E-Discovery Struggling to Becoming Intuitive and Seamless
Electronic discovery is coalescing around the theme of “user experience." The transition from DOS to Windows opened computing to everyone. Similarly, e-discovery is struggling to design the transformative killer app(s) or platform that will render e-discovery as intuitive and seamless as operating an iPhone and allow genuine e-discovery to inform all litigation matters, disputes, and investigations.
William "Bill" Hamilton
UF Law E-Discovery Project and
International Center for Automated Information Retrieval
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 is a lot of frustration and the occasional bruise along the way.
E-Discovery 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.
For some great pointers from the IT perspective, check out the article 6 Tips to Bridge the Gap between IT and Legal.