eDiscovery: What is it and how can it affect me?

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.

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Allen Sheaprd


Thanks for the eDiscovery info. Wow VoIP is now covered? For those working at home I wonder how they manage personal v.s. business calls.

Wow 70% paper chase in 1999 is now 30% – I’m sure that is falling.

BTW – one more little wrinkle – keep backups with a third party to prevent questions of alterations. Do not forget to purge data. The last person to have the data is the one called to court.

I guess any information on the internet is pointless – right??

Lisa Coates

Thanks for adding the suggestions about back ups. We keep a copy of our back ups offsite. Keeping back ups or copies of backups offsite is good for disaster recovery. ECM systems help in purging old records by notifying the users of expired records to be disposed or actually deleting the records determined by an organization’s retention schedule.

If you’re referring to an organization’s website for information on the internet, yes its contents can be requested to be submitted as evidence also.

That’s a very good question about the VoIP and folks who work at home.

David Harrity

Hi Lisa,

Excellent post. eDiscovery is another aspect that affects how government implements Web 2.0 social networking services, particularly challenging when using commercially hosted services (e.g., Facebook, Twitter, YouTube, etc.).

Often I read in Govloop and elsewhere about how/why government lags behind the commercial world in implementing these emerging technologies for Web 2.0…. well, eDiscovery, records management, and information security regulations are cornerstone to providing and allowing such services. It is a difficult task to manage all the regulatory interests ranging from legal, records management/eDiscovery, FOIA, Privacy Act, FISMA, FACA, GPRA, and so on and so on.

I believe your comments would be well served in the OMB MAX forum regarding the review of the draft policy document on “New Media” being developed by GSA; no mention of eDiscovery is included to my recall.

jana gallatin

Records Management … doesn’t matter what the media is. Have a well planned and enforced records program and you’ll save yourself a lot of grief.

Those of us responsible for DoD 5015.02-STD (DoD’s functional requirements for records management applications) are working hard to make people aware that whatever the latest and greatest technology is, if you allow people to make government records using that technology, you are legally responsible for ensuring those records are captured, scheduled, and protected.

So, how does one capture a record from technologies that encourage ‘intellectual anarchy?” (which is not a bad thing by the way, i’ve been practicing it for decades)

Lisa Coates

Are you referring to general correspondence, reference materials, pictures & video, databases, data, email and web content?

A lot of our unstructured data is stored on the Iseries, commonly known as the AS400 server. This data can be viewed as just data or an overlay form can be applied to it to look like an electronic form. The electronic form with its data is then sent to our imaging system.

Our databases are stored in SQL

General correspondence and reference materials are stored in the imaging system and purged by retention.

Pictures and video are stored on a SAN. We have a video server also. We have not tied all of the Digial Asset Management together yet.

Our web content is also stored on a networking server and backed up to Unitrans.

We have not brought together our Digital Assets or Web Content into an ECM system.

I am wondering how other organizations have started this process?