E-discovery can be a very complicated process wrapped up in considerable legalities. For the legal professional, e-discovery is now a regular part of modern litigation. Our fast-moving world relies on technology for everything, and the legal industry is no exception. As e-discovery becomes more common, lawyers cannot afford to ignore the practice and establish policies to protect their clients and themselves.
Despite the complications involved in e-discovery, lawyers can benefit greatly from learning about the practice and incorporating it into their firm. It is important to remember that e-discovery is a process, not a single action. Keep reading to learn more about the basics of e-discovery for small to mid-sized law firms.
What is e-discovery?
Electronic discovery, also known as e-discovery, is the electronic process of collecting information and producing materials relevant for a case. While discovery is the traditional term used for this litigation phase, e-discovery involves electronically store information, or ESI. This type of information includes emails, documents, voicemail, social media, and other forms of electronic communications.
What is the legal process for e-discovery?
E-discovery begins the moment a lawsuit is foreseeable and the process ends when the digital evidence collected is presented in court. The process can be relatively short or drag out for extended periods of time depending on the case at hand. However, there are some key steps followed in e-discovery for any case.
First, attorneys identify which data is relevant. That data is placed on a legal hold. Next, both sides agree on the scope of discovery. Attorneys identify which ESI is relevant, and both requests and challenges are made for e-discovery. The parameters for e-discovery are set, and both parties identify what information is being looked at, what is needed, and what should be screened out. This part of the process is important to reduce the effort needed when searching and reviewing electronic data.
Finally, the evidence is extracted. It is analyzed through digital forensic procedures and then converted into a file format that can be used in court. In some cases, it might be necessary to use pattern identification or trend identification to make sure that this process is efficient and as error-free as possible.
Why is e-discovery important?
E-discovery is crucial to the legal process. Email content, voicemails, and text messages have the power to make or break a case and determine billion-dollar suits. As technology and processes improve, e-discovery’s function in the legal system has become formalized with rules and regulations governing how data is collected and used. Compliance is just one reason that lawyers must pay special attention to e-discovery and the parameters set by the court system.
Also, e-discovery has become part of lawyers’ ethical duty. In order to provide competent and complete representation, a lawyer must be able to search for and utilize electronically stored information. If a lawyer does not understand the practice of e-discovery, they cannot properly represent their client.
What are the challenges for e-discovery?
Despite how important e-discovery is to the legal process, many legal professionals still struggle with the practice. The tasks involved in e-discovery are not typically found in a lawyer’s toolkit, so they may find themselves burdened with responsibilities they are not prepared for. Also, e-discovery is not typically taught in law schools, and lawyers found themselves learning the practice on the job.
The process of e-discovery also involves considerable technical skills. A lawyer must work closely with the IT team, and the two professional groups often speak different languages. Gaps in communication can make e-discovery a more difficult process.
At the end of the day, e-discovery is not easy. However, it cannot be ignored because the practice will only become more important as ESI becomes more diverse. Lawyers have to put in the hard work of learning about e-discovery and incorporating it into their practice. It will become crucial to properly representing clients, and lawyers must keep up with the trends to do their job well.