Electronic Discovery Rules and Regulations

Electronic discovery (“eDiscovery”) rules and regulations must be understood when dealing with digital or electronic evidence. It is the concept of locating, identifying, collecting, and producing electronically stored information (“ESI”) as part of a response to production of documents in a pending legal action. Electronically stored information may include electronic messages, files, presentations, databases, voicemails, audio/video files, or websites.

Federal Rule of Civil Procedure 34 defines “electronically stored information” as writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations that are stored in any medium from which information can be obtained directly or after translation by the responding party into a reasonably usable form.

Federal Rules of Evidence 902(13) and 902(14) provide for the self-authentication of electronic evidence. So now, electronic evidence may be authenticated by certification instead of testimony. FRE 902(13) applies to electronic evidence like computer files, social media posts, and smart device information. FRE 902(14) applies to data copied from an electronic device, storage medium, or file.

The California Electronic Discovery Act establishes rules and regulations for a person to obtain discovery of electronically stored information within the adverse party’s possession. It allows discovery by copying, testing, or sampling, and inspection of electronically stored information. In addition, Senate Bill 1574 confirms that the law provides for discovery procedures for the production of evidence by subpoena and that a subpoena can compel a witness to bring electronic files under his or her control.

Electronic discovery procedures are complicated due to the volume of information that is stored by the parties. As such, it presents a remarkable challenge for the electronic information must be properly assessed in order to respond to discovery requests. Electronic files include metadata (e.g., author information, file properties, time/date stamps) that should be assessed beforehand. Data preservation is a key component to these procedures and should be given serious consideration to avoid data spoliation or evidence tampering. We encourage our clients to familiarize themselves with the Electronic Discovery Reference Model (“EDRM”) which is a conceptual framework that outlines the standards for discovery of digital information.

Now, when the electronic files are assessed and identified by the parties, only the relevant files should be place in a “legal hold” so they won’t be deleted, modified, or destroyed. In other words, only the relevant files should be extracted, indexed, and transferred into a secure location. Then, the electronic files should be analyzed to cull or segregate the non-relevant documents. The electronic files should be carefully reviewed to label and categorize the relevant evidence pursuant to the rules and regulations.

In some cases, only the relevant and admissible evidence is converted to a static format (e.g., PDF, TIFF) to allow the redaction of privileged or non-relevant documents. The parties may use Computer Assisted Review (“CAR”) or Technology Assisted Review (“TAR”) programs in order to enhance the discovery process by decreasing the number of reviewed documents. This way, the parties can extract and produce the evidence in a practical way.

The federal courts have outlined their electronic discovery guidelines in the following manner: First, they encourage reasonable electronic discovery with the goal of limiting cost, effort, and time. Second, the federal courts expect the parties to cooperate with each other regarding the preservation, collection, search, review, and production of electronically stored information. Third, they address the reasonability and proportionality of discovery in their guidelines. Fourth, they encourage the parties to meet and confer when the lawsuit involves electronic discovery. In that way, they can discuss the issues related to preservation, production, phasing, protective order, and price reduction.

It’s important to know your legal rights and responsibilities when it comes to electronic discovery. Please contact our law firm to speak with a knowledgeable internet and technology attorney at your convenience.