The Evolution of eDiscovery – Part 1

Recent court rulings have found that electronically stored information (ESI) has equal evidentiary weight and value as conventional paper documents.  With eDiscovery, the methods traditionally used for legal discovery are applied to digitally warehoused materials and electronic documents.

The exceptional range of digital information subject to eDiscovery includes emails, Word/PDF and other documents, YouTube videos/digital pictures, spreadsheets, web pages, presentations, voice mail, text messages, digital audio files, Skype conversations, and social media posts.  These represent only a sample of digital materials that eDiscovery can be called to examine for legal purposes.

Comparison to Traditional Legal Discovery

In addition to the differences in format, eDiscovery also diverges from written paper documents in other ways.  It is dynamic rather than static – content of electronic data can be changed more readily and less noticeably than most paper documents.  Moreover, the explosion of cloud computing has:

• substantially increased the number of locations where ESI and digital assets can be stored or hidden,
• making their retrieval for legal proceedings increasingly problematic,
• enhancing the need for efficient eDiscovery,
• within the strictures of often tight court-imposed discovery deadlines

Thus, complex and controversial issues can emerge for the use and delivery of eDiscovery’s findings.

In addition, there will always be some question of who last-accessed material, a significant legal consideration since opening a digital file transforms its metadata, which must be accounted for during trial, if data from that file is used.  To assure proper identification, a forensic image of the computer should be made prior to re-starting the computer for eDiscovery purposes.  This assures recording of user, time and date, thus separating the discovery process from prior use.

Also, the sheer volume of ESI messages and data is considerably larger than paper.  This has been especially true since the emergence of Big Data as a way of digital life.  It matters for eDiscovery, because investigation of every item of information potentially pertinent to a particular case is required, to ensure all responsive material is included during litigation.  It is also important for eDiscovery personnel and the legal team they represent to ensure privileged data is appropriately identified.

The exceptional quantity of electronic data makes it impossible to examine each separate item individually.  Where quantities of digital information is excessive, the legal system advocates their computer review, to ascertain their relevance to a case.

This development is necessary.  eDiscovery has its benefits for improving the reliability and content of evidence.  However, for corporate attorneys and in-house counsels dealing with ever-increasing volumes of Big Data, this also means more documents to analyze, increased risks and higher litigation costs.

Look for additional information in Digital Forensics – Part 2.  If you would like more information about eDiscovery or how TERIS solutions can assist you, please contact us!