Electronic Discovery, or “eDiscovery”, refers to discovery in civil litigation which deals with information in electronic format. This is any process in which electronic data is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal legal case.
eDiscovery is the subject of amendments to the Federal Rules of Civil Procedure which were effective December 1, 2006. The new amendments call for legal parties involved in litigation in federal court to sit down prior to the proceedings to discuss their clients’ document management systems. The rule also requires each company to designate a spokesperson to represent its IT group in litigation. There is no getting around an e-discovery process. It is in your best interests to address e-discovery needs sooner rather than later. Compliance is now law. And the consequences for not complying and not being prepared in an eDiscovery situation–can be devastating.
In 1999, 70% of all discoverable information was contained in paper documents. Today, 70% of relevant information is stored on your hard drive or network in digital files. With increasing numbers of electronic records, experts predict the number of e-discovery requests to skyrocket.
As much as we would like to think that electronic evidence is the same as paper evidence, the fact is that there are essential properties of electronic evidence that make it fundamentally different from traditional evidence.
eDiscovery poses new challenges and opportunities for governments, attorneys, their clients, technical advisors, the courts, and espcially an IT department as electronic information is collected, reviewed and produced. Keeping good records of employee’s electronic communications will be a necessary part of being in business. Records will include everything from the obvious emails and documents, to the less obvious but equally important images, calendar files, databases, spreadsheets, audio files, web site logs, VoIP calls, and more. It’s a huge task and the expense can be sizable.
eDiscovery is an evolving field that goes far beyond just technology. It gives rise to multiple legal, constitutional, political, security, and personal privacy issues, many of which have yet to be resolved.
Have a plan. Store only what’s vital. If you store it, it’s probably open to e-discovery. People imagine an e-discovery request will require them to produce information from one or two systems but, in reality, it may involve many systems.
To avoid the labor-intensive process of humans sifting through terabytes of electronic records, a good Electronic Content Management System is fast becoming a growing area in cybersecurity. Electronic Content Management (ECM) is the process & technologies used to capture, manage, store, preserve, and deliver content and documents related to organizational processes. ECM tools and strategies allow the management of an organization’s unstructured information, wherever that information exists.
See my discussion on E-Discovery: How Electronic Content Management can help you meet this challenge, in the Electronic Content Management Group.