Everything you wanted to know about eDiscovery, but were afraid to ask
This chapter describes and defines electronic discovery, eDiscovery, or e-Discovery, for anyone involved in the processes of litigation or investigations. It should provide an introduction and overview of the basic concepts and terms you will need to begin any conversation around the practice of electronic discovery. Following chapters will dive into more nuanced and specific issues within the process of managing electronic evidence in litigation.
The purpose of this guide is to describe the fundamentals of eDiscovery. If you are involved in modern litigation or investigations, you will almost certainly encounter eDiscovery. However, we should note that while the legal profession now recognizes eDiscovery as a distinct practice area, the word is really an artificial construct.
eDiscovery is really just another way to describe discovery, the process of obtaining and exchanging evidence, or information that might potentially become evidence, in litigation. But as the world has moved almost exclusively to electronic communications, some legal professionals began adding the “e” to make it clear that electronic records were now involved. So at a basic level, eDiscovery describes the process of discovery, updated to address the challenges and complications of collecting, reviewing, and producing evidence in the modern, digital world.
Discovery is the legal process governing the right to obtain and the obligation to produce non-privileged matter relevant to any party's claims or defenses in litigation. In other words, it is the legal procedure by which parties are required to exchange information and evidence with one another in state and federal courts. While we primarily describe discovery in the context of litigation, the process is also essential to investigations, arbitrations and, generally, other forms of dispute resolution whereby parties must gather facts.
Most discovery still comes in the form of testimony or recorded interrogations. Discovery can also involve physical items, like medical exams or a defective product. But increasingly, discovery is focused on electronically stored information (ESI), which is why lawyers often use the term eDiscovery to distinguish the discovery of electronic records from other forms of discovery.
In years past, parties exchanged paper documents—often hundreds and hundreds of boxes of them. Over time, paper documents have been largely replaced with computer generated content, and the process of discovery was forever fundamentally changed. ESI can now be email, social media, cell phone data, digital audio or video recordings, global databases, apps, global positioning data, data stored in a household appliance, onboard computers in a car, or any of the thousands of digital records produced by an average person on an average day.
This section could easily be titled "Why eDiscovery Is So Hard—And Why It Doesn't Need to Be."
Until recently, discovery was a relatively pro forma affair, involving written requests for production in which a party to a lawsuit asked another party or a third party to furnish information. To do this, they described the documents or records of interest or particular types of information they needed to support the claims of a case. The party responding to the request was expected to locate responsive and produce the evidence or copies of the evidence.
The responding party could withhold or redact items containing privileged information, such as confidential communications between lawyer and client, but was obliged to furnish a log describing what had been withheld. The court served as a referee, assessing when a request was unduly burdensome or compelling production when responses proved insufficient.
But with the mass adoption of personal computing and the internet in the 1990's, the processes and practices that had worked well for paper documents began to break down. A flood of digital records greatly complicated a once simpler system. Some responded by printing everything out, reviewing and redacting by hand. Others embraced early eDiscovery software—systems that allowed legal teams to review electronic files electronically, but often required entire teams and specialized expertise to maintain. Indeed, some of these legacy eDiscovery software systems are still in use today—and many of their modern equivalents are just as complicated.
The growing number of documents available in discovery is a challenge that's unlikely to go away anytime soon. The United States has a long tradition of broad discovery, which allows litigants to request a wide range of information and document types for almost any matter—and new sources of valuable information are constantly emerging.
To help you understand the scope of the problem, consider the volume of evidence now available for litigation. For example, in one recent patent dispute, Samsung collected and processed about 3.6 terabytes of data, or 11,108,653 documents in a case against Apple Computers. The cost to process that evidence during a 20-month period was over $13 million dollars.
Of course, this case is an extreme example, but eDiscovery is a fact in matters of all sizes. In fact, digital evidence is playing an increasingly important role in even family law and criminal cases. As we all live increasingly digital lives, we are all leaving a daily trail of electronic evidence that often tracks our every move. And it is all available for discovery.
The growth of discoverable data is unlikely to slow down in the future. But innovative legal teams are finding new ways to bring simplicity and cost savings to their discovery process. Many corporate legal teams are brining the discovery process in-house using available technology, for example.
Before the digital era, an attorney conducting document discovery could simply meet with her client, gather physical documents, and begin reviewing them.
Yes, it involved bankers’ boxes. Yes, sometimes redactions needed to be made by hand, with a giant marker, and Bates stamps required actual stamps. Yes, it might not have been the most speedy or efficient practice. But the process was simple. It was straightforward. It made sense.
Fast forward thirty-five years later and the typical discovery process is anything but simple. For large corporations and other data-rich organizations, discovery can trigger a byzantine labyrinth of processes, as litigation holds are placed, custodians and repositories identified, vendors evaluated and procured, data analysis and culling procedures performed, etc.
This approach to discovery is great for vendors and experts, who’ve leveraged this complexity into a billion-dollar industry. For most legal professionals, though, it’s frustrating at best.
Ironically, while discovery has grown more and more expensive and complex, many other daily tasks have become ever simpler.
Take, for example, finding information on the internet. In the earlier days of the web, it could be incredibly frustrating to discover websites. Early web search engines were cluttered, confusing imitations of the Yellow Pages, websites that made navigating the internet much harder than it needed to be.
Google’s primary innovation was stripping out all that extraneous and distracting noise—by focusing on the problem the user was trying to solve when they use Google: just getting information. Not building a website, not signing up for a forum, not shopping for a new computer. Just getting answers to your questions.
Innovative legal teams are pursuing a similar goal, using software that strips away complexity to make difficult processes seem simple. That's the goal of modern instant discovery software: to strip away overly complex processes; to remove the need for downtime, slow processing, and expert services; to create an interface that makes finding, organizing, and reviewing documents incredibly easy; to make discovery as easy as upload, search, download—and at speeds that are virtually instant.
Many people may claim not to have heard of eDiscovery, but in fact, eDiscovery has played a starring role in many of the most famous legal battles of the past few decades.
Lawyers have known for almost 30 years that digital documents—especially email—are a key to winning many types of cases. eDiscovery is the art and science of collecting, preserving, reviewing, and presenting digital evidence for litigation. Though it may seem like an exotic practice area, eDiscovery has a long and important history.
Understanding eDiscovery begins with understanding the Federal Rules of Civil Procedure. Don't worry—we're not going to make you take a Civil Procedure class. However, it is important to understand that the Federal Rules of Civil Procedure describe and define the discovery of electronic information. In fact, the rules have been updated twice already to address the specific concerns of electronic discovery.
At the federal level, the Federal Rules of Civil Procedure (FRCP) govern the procedure for civil lawsuits in United States district courts. At the state level, each state has their own set of statutes and rules that govern the procedure for civil lawsuits in state court. However, we mainly refer to the FRCP, which most jurisdictions model their own rules after.
In December 2006, significant amendments to the FRCP shaped the landscape for how eDiscovery works today. Among other changes, the 2006 amendments redefined discoverable material; encouraged early attention to issues relating to eDiscovery; introduced the concept of “reasonably accessible”; provided a procedure for asserting claims of privilege and work product after production; and provide a mechanism for "safe harbor" limits on sanctions related to loss of ESI as a result of routine operation of computer systems.
Arguably, the most important 2006 amendment was simply to include the words “electronically stored information” on the list of information that is discoverable throughout the discovery process. Specifically, FRCP Rule 34 dictated disclosure and discovery related to “producing documents, electronically stored information, and tangible things or entering onto land, for inspection and other purposes.” The phrase “electronically stored information” is broad enough to cover all current types of computer-based information and intended to be flexible enough to encompass future changes and technological developments.
The Rules were amended again in December of 2015. These more recent changes were less sweeping but no less important. The amendments were aimed primarily at addressing a few outstanding issues not adequately addressed in the 2006 changes.
The rule change that got the most attention was Rule 37. The amended Rule 37(e) allows sanctions for failure to preserve ESI, but limits sanctions for failure to preserve so that negligence, even gross negligence, will not be sufficient for imposition of most severe penalties.
Perhaps the most sweeping change was to FRCP 26(b)(1) regarding proportionality and the scope of discovery. Rule 26(b)(1) was rewritten to limit discovery to that which is “proportional to the needs of the case” and provided five factors for courts to consider. This Amendment redefined the scope of discovery so that parties must address concerns about whether the amount of discovery is reasonably necessary to resolve the case fairly.