In an age when vast amounts of electronic data can affect the outcome of litigation, the rules of electronic discovery (eDiscovery) can no longer be ignored. In fact, many state bars are mandating technology-focused CLE. Why? The consequences of ignorance can be devastating: large monetary sanctions against you and your client for failing to preserve electronic evidence.
I propose that eDiscovery law can be simplified by thinking in terms of the chronological steps from the creation and storage of data to the advent of a dispute and, finally, to the resolution of an eDiscovery specific issue. The timeline is as follows.
Think of electronic evidence in the broadest terms possible:
Businesses may (or may not) have retention and deletion policies. In eDiscovery law, the first critical question is determining when data that would otherwise be deleted, because of a retention policy, should be preserved. Here, the student of eDiscovery law learns the principles of preservation based upon the “reasonable anticipation of litigation.” Such preservation is implemented through a “litigation hold.”
If a dispute mushrooms into litigation in federal court, the Federal Rules of Civil Procedure impose two initial requirements on counsel:
All forms of discovery permissible under the Federal Rules of Civil Procedure are available in eDiscovery. Practically speaking, requests for production and depositions predominate. At this stage, practitioners must be familiar with eDiscovery vocabulary such as “native format” and “metadata.” The idea is that the data being produced should be in a form that the opposing party can decipher. At the same time, consideration must be given to avoiding exposure of confidences and privileged material.
The simpler forms of eDiscovery disputes mirror the dance of traditional civil litigation: motions to compel and for protective order. That being said, a recent revision to the Rules injected considerations of cost proportionality, meaning that the court will look at potential discovery expense when considering whether to compel production of data. Perhaps the thorniest eDiscovery issue is spoliation (i.e., lost or destroyed electronic data). Rule 37 now encapsulates the ground rules to decide spoliation-based motions.
Think about eDiscovery law as the end result of a chronological process.
I hope you find this useful. If you are interested, I’ve created a reference guide for learning eDiscovery law: GlanceCharts Quick Guide to eDiscovery.
While this discussion is centered on federal practice, be aware that most states have adopted eDiscovery rules as well. Many states have modeled those rules after the Federal Rules. eDiscovery may not rear its head in every case, but if you are not familiar with at least the basics, you are putting your practice at risk.