Discovery is arguably one of the few things that can be described as an art and a science. Art, because effective discovery requires intelligence, intuition, and creativity; science because theories need to be explored, tested, and, if necessary, discarded and replaced. In addition, just as there are scientific laws that need to be obeyed, there are laws (and rules) that demand adherence, failing which disaster often follows.
One area that puts the ability to manage both creativity and procedural rules to the test is that of electronic discovery, especially because methods of discoverable electronic storage change frequently. In addition, courts are becoming ever more demanding with respect to production of evidence. It has become clear that lax standards and casual procedures regarding preservation of electronic information is not something any firm or in-house counsel can or should tolerate, not only because it will lessen the chances for a successful outcome in the matter but also because of potential sanctions against the lawyer(s) involved.
Unlike document production, electronic discovery involves a medium of recordkeeping that is ever-evolving (e.g the “cloud”). Few individuals, much less companies or organizations, are capable of identifying what is stored where with any specificity. The frustration of not being able to locate a specific file, photo, chart or email attachment rises to another level altogether when failure to do so runs afoul of the rules of civil procedure.
Look for additional information in Electronic Discovery: The Good, the Bad, and the Ugly Part 2. If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!