Electronic discovery

Electronic discovery, or "e-discovery", refers to discovery in civil litigation which deals with information in electronic format also referred to as Electronically Stored Information "ESI". In this context, electronic form is the representation of information as binary numbers. Electronic information is different from paper information because of its intangible form, volume, transience, and persistence. Also, electronic information is usually accompanied by metadata, which is never present in paper information unless manually coded (See below). Metadata is the data about the data, or the information that is kept about the electronic files ie who the author was, when the file was created etc. It is descriptive information that can not be changed unless spoliation occurs. Electronic discovery poses new challenges and opportunities for attorneys, their clients, technical advisors, and the courts, as electronic information is collected, reviewed and produced. Electronic discovery is the subject of amendments to the Federal Rules of Civil Procedure which are effective December 1, 2006.[1] shows the changes, the complete Rules, where in particular rules 16 and 26 are of interest to electronic discovery, are at [2]

Examples of the types of data included in e-discovery are e-mail, instant messaging chats, documents (such as MS Office or OpenOffice files), accounting databases, CAD/CAM files, Web sites, and any other electronically-stored information which could be relevant evidence in a law suit. Also included in e-discovery is "raw data" which Forensic Investigators can review for hidden evidence. The original file format is known as the "native" format. Litigators may review material from e-discovery in one of several formats: printed paper, "native file," or as TIFF images. If the native file, for example a Microsoft Word document, contains 10 pages, then an electronic discovery vendor will convert it into 10 TIFF images for use in a discovery review database. Documents that are produced are numbered using Bates numbering.

Individuals working in the field of electronic discovery commonly refer to the field as Litigation Support.

History

Document Coding

To better organize and manage their documents, lawyers and paralegals would code their documents for specific fields, and load this information into a database to easily classify and reference documents during review. Information captured from these documents, to be inserted into a database would include "to", "from", "document type (i.e. letter, memo, brief, or other)", "document date" and others. Historically, this process was performed either by the legal team or outside vendors for most of the documents in the case. As 'documents' changed from being paper based to electronically stored information, this process was largely replaced by "processing" of electronic files. Coding of paper documents, however, will not go away until the pen is completely replaced by the computer.

"Coding" is a manual process, and can be very expensive and time consuming. This makes "coding" a natural candidate for outsourcing. Coding for standard "bibliographic" fields is now commonly outsourced to firms where labor costs are lower than in the countries that generate the litigation in the first place. South Africa and India, with large English speaking populations and favourable exchange rates, are natural locations for outsourced coding of scanned paper documents from the legal systems of the United States and the Commonwealth of Nations. Often, the document review and coding functions of large law firms are farmed out to contract attorneys who work on a temporary, per diem basis.

Conveniences vs. Standard Document Coding

One of the major conveniences of performing electronic discovery, versus standard document coding, is that it is an automated process, in which digital files are taken, have their metadata extracted, and built into a database. This process can be done at a much lower cost, not just because it takes less time to accomplish, but because most of the time it takes to accomplish is considered machine time, and not man hours.

Using this process, the number of fields you can capture are only limited to the amount of metadata each file can give you. Common fields used in electronic discovery include "to", "from", "cc", "bcc", "time/date message sent", "time/date message received", "subject", "body", "author", "document date", "date created", "last modified date" and others.

When a need arises to perform electronic discovery, usually a litigation support vendor would be contacted, and will consult as to how data can be processed to have the best possible result. The vendor would extract the necessary information from the files provided, either using proprietary software developed by the vendor, or an "off the shelf" solution.

Using the information extracted from the raw data, either a load file, or a database is built. The databases or load files are then processed through software or Application Service Providers.

Electronic Message Archiving

Quite often, discovery evidence is either delayed or never produced, many times because of the inaccessibility of the data. Backup tapes can not be found, or are erased and reused. This kind of situation reached its apex during the Zubulake v. UBS Warburg LLC lawsuit. Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS' own computer systems.

Because the emails requested were either never found or destroyed the court found that it was more likely that they existed than not. The court found that while the corporation's counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in serious sanctions against UBS.

In 2006, the U.S. Supreme Court's amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant message chats as likely records to be archived and produced when relevant. The rapid adoption of instant messaging as a business communications medium (See Instant Messaging section on business use) during the period 2005-2007 has made IM as ubiquitous in the workplace as email and created the need for companies to address archiving and retrieval of IM chats to the same extent they do for email.

With electronic message archiving in place for both email and IM it becomes a fairly simple task to retrieve any email or IM chat that might be used in e-discovery. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.

Also important to complying with discovery of electronic records is the requirement that records be produced in a timely manner. The changes to the Federal Rules of Civil Procedure were the culmination of a period of debate and review that started in March 2000 when then Vice President Al Gore’s fundraising activities were being probed by the United States Department of Justice. After White House counsel Beth Norton reported that it would take up to six months to search through 625 storage tapes, efforts began to mandate timelier discovery of electronic records.

Modern message archival systems allow legal and technology professionals to store and retrieve electronic messages efficiently and in a timely manner.

The formalized changes to the Federal Rules of Civil Procedure in December 2006 and in 2007 effectively forced civil litigants into a forced compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks litigants face as a result of improper management of ESI include spoliation of evidence, adverse inference, summary judgement, and sanctions. In some cases, such as Qualcomm v Broadcomm, attorneys can be brought before the bar and risk their livelihood.

Resources

• Federal Judicial Center: Materials on Electronic Discovery
• The Sedona Conference
• The Electronic Discovery Reference Model -- an industry group working on standards
• Discovery Resources Org
• Electronic Discovery Resources

See also

• Legal hold
• Discovery (law)