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What is eDiscovery
Electronic communications—such as emails or texts—have become the primary form of communication among organizations and individuals. In the modern world, businesses large and small communicate internally and externally using electronic communications. The same is true regarding document creation and record retention—electronic and digital media has replaced the dated practice of maintaining physical records. When a dispute arises, there is often a significant amount of evidence within the parties’ digital communications and documents. These digital communications and documents are commonly referred to as the parties’ Electronically Stored Information, or ESI.
Recognizing the prevalence of digital communications and documents, lawmakers have amended the rules governing civil litigation to mandate the exchange of ESI through the discovery process. Before the amendments, outdated rules and protocols developed in the Age of Paper were applied to completely new technologies.
In short, eDiscovery is the process of defining what digital information is relevant during commercial litigation, determining where it is stored, collecting that information, and ensuring it is in the proper format for evaluation and use. Once these parameters are defined, the parties engage in a thorough and extensive review of the ESI exchanged. Cases are often won or lost based on the quality of the review, and each party’s respective ability to identify critical documents to use as evidence.
Navigating the eDiscovery Process
The eDiscovery process involves the collection of relevant digital communications and documents, carefully reviewing them for any applicable privileges, exchanging them with adversarial parties, and reviewing and evaluating the opposing parties’ productions. There are also many nuances that can be involved in a particular lawsuit, such as the need to protect proprietary or confidential business information, while still complying with the obligations imposed by the court rules. It is equally important to be wary of the scope of an opposing party’s production, and to be able to recognize when an adversary has surreptitiously fallen short of its eDiscovery obligations, potentially in an attempt to avoid the discovery of key documents.
Because of the extraordinary volume of electronic communications and documents businesses create and maintain, eDiscovery can often be incredibly time-consuming and costly, depending on the quantity of information relevant to the case. By way of example, a single email can include numerous members of an organization and it can create a thread with several responses—not to mention all of their attachments. Additionally, an issue at the center of a lawsuit can be years in the making, leading to the creation of countless relevant emails and digital documents over a vast period of time.
Choosing an attorney experienced in eDiscovery is crucial to navigating the eDiscovery process. It is essential to have an attorney at the helm who can:
- Properly manage and organize the vast amount of electronic communications and documents collected and received (often in the hundreds of thousands, or more);
- Maximize efficiency and limit costs throughout the eDiscovery process;
- Ensure privileged information remains withheld from productions to opposing parties;
- Ensure proprietary information is protected;
- Store the electronic communications and documents collected in a manner that allows for them to be easily accessed, reviewed, and preserved;
- Find the “needle in the haystack” and effectively hone in on the best documents to support your case;
- Ensure all documents are reviewed to identify potential issues or problems with your claims or defenses;
- Hold accountable any opposing parties that attempt to limit their document collection to avoid the production of key evidence against them;
- Provide advice regarding best record retention practices.
When multiple parties are involved in a lawsuit, and the issues are complex—which is often the case in commercial litigation—the need for an attorney experienced in eDiscovery is intensified. During litigation, digital communications and documents can come from many sources (subpoenas, productions, FOIA requests, etc.), and the volume of ESI can be overwhelming. Having someone on your team who can effectively and efficiently handle the arduous demands of eDiscovery can provide an invaluable tactical advantage.
eDiscovery is an ever-changing landscape of technological development and legal regulation, and has become a critical aspect of commercial litigation. In today’s constantly evolving digital world, it has never been more important to have an attorney knowledgeable in the best practices of eDiscovery on your team to navigate the process. Finding a firm experienced with eDiscovery management is vital to minimizing costs without sacrificing the benefits of thorough collection and review of ESI, while simultaneously protecting your rights. Our team has specifically focused on this novel area of the litigation process, and is well versed in the key areas of eDiscovery practice.
Please contact attorney Evan Lumley or your Kotz Sangster relationship attorney if you’d like to learn more about how we can assist you with eDiscovery for commercial litigation.