Electronic discovery (a/k/a “eDiscovery”) is the process of identifying, locating, preserving, collecting, preparing, reviewing, and producing electronically stored information in the context of the legal process. Electronically stored information (“ESI”) includes anything that can be stored in electronic form on a computer or other media device. A computer is defined as “an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions (e.g., desktop, laptop, smart phones, tablets, CDs, DVDs, flash drives, backup tapes, voice mail, servers, and access control systems).
What Are the Issues That Arise During Electronic Discovery?
The following issues may arise during the course of electronic discovery: First, the attorney-client privilege and work-product doctrine play a key role. The attorney-client privilege protects the confidentiality of communications between an attorney and his/her client. The work-product doctrine prevents a party from discovering documents that are prepared in anticipation of litigation.
Second, there should be an effective record management program. A business record is a vital asset and yields value. Therefore, a business should implement a mechanism in order to properly preserve and discard documents, when and if necessary. The business should also implement a proper data retention policy and classification scheme.
Third, a business must be ready for litigation because it faces potential lawsuits and government investigations pursuant to regulatory and compliance demands at all times.
Fourth, is the process of legal hold and evidence preservation. A legal hold is to preserve relevant information when litigation is reasonably anticipated. This process can have significant impact on cost, resource allocation, and business disruption. The failure to preserve records (i.e., paper or electronic) and to search in the right places for those records can result in the spoliation of evidence. In general, the courts have the authority to impose sanctions if there is spoliation of evidence, especially if someone acts negligently or in bad faith.
Fifth, there are meet and confer obligations between the parties. In fact, FRCP 26(f) mandates the early meet and confer conference between the parties and is designed to promote a discussion regarding discovery parameters.
Sixth, is the issue of strategic litigation challenges in handling data. It includes identification, collection, preparation/processing, review and production. The main issue for data collection is keeping a proper audit trail. The main concern in preparation/processing is to create maximum visibility for the collected data. The main issue for data review is to make sure that quick methods are used to scrap and scan key documents. The main goal in data production is to finalize the task quickly and accurately.
What is the Future of eDiscovery?
In conclusion, the future of eDiscovery is important. It includes information governance and supporting information as a valued asset. One of the cutting-edge developments is computer learning, not only for document reviews, but also for managing business records. The law is not uniform across jurisdictions, but it is evolving with time. Also, there is the issue of government surveillance of electronic information (e.g., PRISM). As we know, the government is scanning internet traffic and targeting encrypted files. Although, it takes time to decrypt data, massive amounts of electronic data are being captured for various reasons.
At our law firm, we assist clients in matters related to electronic discovery and data collection. You may contact us in order to setup a free consultation.