It was not more than a decade ago when production of electronically stored information (ESI) was only seen in big or complicated civil cases. A lot has changed in the 21st century and today many civil cases involve some sort of electronic discovery, or e-discovery to get to the truth of the issues being litigated. In many cases e-discovery can reduce copying costs and make important information easily shareable among litigants and the court.
E-discovery is the formal request for electronically stored information during the discovery part of a trial. It commonly includes e-mails, web browsing histories, online transactions, word processing documents, electronically stored photos, and recorded messages for example. The data could come from a computer, voicemail system, smartphone, PDA, or any other electronic device.
Generally, e-discovery is obtained in the same manner as other forms of discovery. One party must request the information from the adverse party in accordance with the applicable rules of civil procedure. That means that, e-discovery, like other types of discovery, must be relevant to the requesting party’s claim or defense. The request must specify with reasonable particularity the items sought for discovery. This is meant to prevent a “fishing expedition” where the requesting party broadly requests all electronic information in the hope of finding something useful to the case.
Issues in E-discovery
While the rules for e-discovery are similar to traditional discovery, e-discovery does present some issues that are not applicable to traditional discovery requests. Some of those issues include:
· Preserving Data: the dynamic and fast changing nature of electronic data may make it difficult for a party to obtain relevant information if the data has been changed or destroyed. The Federal Courts, and many state courts, allow litigants and even potential litigants to place a litigation hold on certain electronic information if it is reasonably thought that it might be discoverable.
· Scope of Discovery: the amount of electronic information that a party has may be enormous in scope. The volume of information can make it difficult to identify appropriate information to comply with the discovery request and to separate privileged information from the discoverable materials.
· Cost: the cost of obtaining electronic information for discovery can be high and the work associated with preparing the information for discovery can be burdensome and expensive.
· Form of Production: it can be difficult and expensive to make electronic information available in a form that is accessible to the requesting party. Litigants often argue over which party should bear the cost of making electronic information accessible.
Minimizing Issues and Maximizing Benefits of E-Discovery
The Federal Rules of Civil Procedure require that attorneys meet and confer to talk about the case and develop a discovery plan soon after litigation has been initiated. Many times this is a perfunctory meeting. However, federal judges have been instructed to require attorneys to take this meeting seriously in matters where e-discovery is sought so that the issues related to e-discovery can be discussed and resolved and the benefits of e-discovery can be maximized for both parties and for the court.