Electronic discovery (e-discovery) refers to the identification, preservation, collection, processing and analysis, review and production of electronically stored information in preparation for litigation, regulatory investigation or audit. The volume of electronic information involved in a single case may vary from hundreds to millions of records, the vast majority of these created electronically. It’s important to understand and adopt the best practices and methodologies for managing electronic records.
Electronically Stored Information (ESI)
These days, over 90 percent of new information is being stored electronically. Given this reality, key evidence is more likely to be stored electronically than as a hard copy. Furthermore, an email or other electronic document will contain more information than provided in a printed paper copy. Not unlike fingerprints on a handwritten note, an email contains metadata that provide a wealth of information. Lawyers are increasingly required to access electronically stored information (ESI) during the discovery process.
Metadata contained in ESI may reveal things like the data the document was created, the identities of its author and editors, the distribution route and the history of editorial changes. Authenticated computer files are considered “best-evidence,” as they are either original documents or exactly the same as the original document. ESI can be found in various and multiple locations and formats, making it difficult for all copies of a given document to be intentionally destroyed. Without a doubt, the most voluminous type of evidence is email, which exist only in an electronic format and are normally “unsantized.”
It’s important to note that ESI can be more difficult to locate and capture than traditional paper documents, which are more routinely found in only one or two locations. Also, ESI can be easily and unknowingly destroyed in the normal course of business by turning on a computer, saving new files, or the rotational reuse of backup tapes.
E-Discovery Law in the US
E-discovery law is developing at a rapid rate in the US, being driven by both regulations and case law. There have been numerous multi-million dollar lawsuits and many other smaller cases that have shone a spotlight on e-discovery issues.
US e-discovery rules focus on the notion that any non-privileged information relevant to a claim or a defense must be produced on a request for discovery. The sanctions associated with the failure to produce requested information are so significant that all parties to a litigation matter are strongly advised to take immediate steps to preserve potentially relevant data.
Most corporations are encouraged to develop stringent document retention policies in order to provide reasonable limitations on the quantity of electronic information available for potential production. New rulings regularly impose heavy fines and other sanctions on corporations that have not properly preserved potentially relevant documents, or where a failure to destroy outdated information has resulted in extremely high and otherwise avoidable e-discovery costs.
Current e-Discovery Issues
The collection and review of electronic information raises unique issues with regard to privacy and privilege, as computers may be used to store personal files as well as privileged and non-privileged business-related files in essentially the same location. In the corporate context, courts have not hesitated to find that employees have little, if any, privacy rights with regard to the files on company computers.
Spoliation and the duty to preserve represent one of the hottest issues in US courtrooms. Courts routinely sanction both plaintiffs and defendants for the failure to preserve and produce electronic evidence. While it is difficult to classify cases by their e-discovery issues, it is estimated that well over half of identified electronic discovery case opinions pertain to ESI production, preservation and spoliation.
The failure to respond appropriately to e-discovery requests may be extremely costly in terms of fines and adverse jury inferences. However, responding to requests may also be expensive. An estimate puts the cost of restoring and reviewing emails at $2/email. For giants like Microsoft, which receives an average of 25-30 million emails every day, the cost of a broadly based e-discovery request could be staggering.
This article takes a look at electronic discovery (e-discovery), which is the identification, preservation, collection, processing and analysis, review and production of electronically stored information in preparation for litigation, regulatory investigation or audit.
CIPP Exam Preparation
In preparation for the Certified Information Privacy Professional/United States (CIPP/US) exam, a privacy professional should be comfortable with topics related to this post, including:
- Civil litigation and privacy – electronic discovery (III.C.b.)