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Overview of E-Discovery
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Electronic Discovery (E-Discovery or eDiscovery) is an evolution of the discovery phase of civil litigation. Discovery involves the exchange of information during an intermediate stage between pleading and trial. The discovery process allows litigants to obtain information about the merits of the lawsuit. Based on this information, the parties can make informed judgments about the strength of their position and their opponent's position. |
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Within the past twenty years, corporations have revolutionized the way they communicate and store records and information. Moving almost exclusively from paper-based storage and microfiche, corporations have embraced electronic media storage and communications. Today, this means not just email, but corporate blogs, wikis, instant messaging, and even social media sites. Additionally, electronic document and content management systems house everything from contracts, internal memos, corporate policies, and job procedures. Electronic storage technology provided efficiency for both storage and access to information. In turn, this fueled the growth of corporate data to the point where the discovery process encountered delays. Court-ordered discovery of email relevant to the proceeding sometimes cannot be produced because, for example, a backup tape was lost, or the email was not properly archived. A seminal case highlighting this problem is Zubulake v. UBS Warburg LLC. Critical evidence was held in email stored on UBS computer systems. When UBS was unable to produce the email, the court determined the emails likely existed. Even though UBS' general counsel instructed all emails be preserved, UBS' technology department did not archive past emails. The court sanctioned UBS for failure to comply with discovery orders. This intent of this legal bibliography is to provide law sources and best practices enabling a proactive approach to E-Discovery. Lawyers assisting corporations need to work closely with Information Technology (IT) staff to form a records management program that supports E-Discovery efforts. Records management policies must be developed to archive and preserve corporate information, while discarding records that fall outside of set policies. Attorneys must be knowledgeable of statutes and common law that establish record retention periods and document classification. The key policies include:
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Scope
This legal bibliography was prepared for Professor Nancy Johnson's Advanced Legal Research course at Georgia State University College of Law. The scope of this bibliography includes primary and secondary legal sources and relevant information on E-Discovery preparedness and compliance. This research guide is intended to assist attorneys and E-Discovery practitioners gain an overview of this evolving area of the law. In addition to legal sources, this guide contains RSS feeds and other Internet sources for E-Discovery information related to compliance with E-Discovery law. Technology plays a critical role in enabling E-Discovery. This guide also provides an overview of the types of technology, such as enterprise search, that enable the E-Discovery process.
Disclaimer
This research guide is provided as a starting point for legal research related to E-Discovery preparedness and compliance. E-Discovery is a rapidly growing and changing area of the law. Corporations continue to store information in digital formats, and corporate communications is almost entirely electronic in the form of email, blogs, wikis, and social media sites. The law can be slow to catch up to such dynamic change - however, E-Discovery is an active area of litigation, and the Federal Rules of Civil Procedure are also catching up. Therefore, this guide should not be considered as providing legal advice or a legal opinion. Primary sources, such as case law, statutes, and procedural rules, should be Shepardized or KeyCited. If you need further assistance in researching this topic, please contact a Reference Librarian at the Georgia State University College of Law or consult an attorney knowledgeable in E-Discovery.
Where do I start?
Not sure where to begin? Follow these 6 steps towards E-Discovery preparedness and compliance:
- Identify and Inventory all Electronically Stored Information (ESI).
- Implement a Records Management Policy for ESI.
- Establish a "Legal Hold" process to mark records.
- Implement a data backup and archive policy for ESI.
- Log and Audit employee access to ESI.
- Purge expired ESI.
E-Discovery Glossary
The following terms are commonly used in E-Discovery primary and secondary law resources:
- Electronically Stored Information (ESI) - ESI refers any information stored on a digital format that requires software for access.
- Social Media - represents web-based and mobile technology that publishes content by the users that make up the site.
- Spoilation - the intentional or negligent destruction, damage, or witholding of evidence relevant to a legal proceeding.
- Personally Identifiable Information (PII) - an information security concept refering to any digital information that can identify a single person.
About the Author
Chris Delgado is a part-time student at Georgia State University College of Law. In law school, Chris is a Moot Court board member, and a member of the Hispanic Student Bar Association. Chris is Managing Director of JSYMMETRIC, Inc., an IBM Business Partner specializing in Enterprise Content Management including Content Discovery, Enterprise Search, and Content Analytics. Chris graduated from Loyola University New Orleans. For more information about this bibliography, please contact Chris at cdelgado5@student.gsu.edu or Professor Nancy Johnson at njohnson@gsu.edu.
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