e-Discovery Simplified
e-Discovery or electronic discovery is the process of obtaining and exchanging electronically stored information or ESI in a civil lawsuit. ESI can include emails and digitally stored documents. Lawyers commonly use software to efficiently sort through that data. This article simplifies what e-Discovery is and how it works.
What is e-Discovery or electronic discovery
eDiscovery at its most basic is preserving, collecting, processing, and producing electronically stored information that businesses used to keep in paper format. It does not obviate paper discovery but compliments it. I have had the unique honor of teaching eDiscovery to many of Florida’s State Court Judges. I have also taught several hundred lawyers how to actually do eDiscovery in continuing legal education courses.
Today businesses receive, store, and exchange most of their data electronically. This is done through a variety of mobile devices beyond desktop computers. What data a business has to keep or preserve is the topic of another article. eDiscovery has existed in federal cases dating back to at least 2005. In recent years the state court procedural rules in Florida were amended to specifically provide for eDiscovery. It is now common in almost ever case.
Today businesses receive, store, and exchange most of their data electronically. This is done through a variety of mobile devices beyond desktop computers. What data a business has to keep or preserve is the topic of another article. eDiscovery has existed in federal cases dating back to at least 2005. In recent years the state court procedural rules in Florida were amended to specifically provide for eDiscovery. It is now common in almost ever case.
Basic e-Discovery terminology
Some of the common and important terms used in eDiscovery are:
- ESI (Electronically Stored Information) - this is the data. Think of it like the old stack of papers lawyers had to look through to produce in a case
- De-Duplication - identifying and segregating true duplicates
- De-Nisting - removal of system and application files from ESI
- Filtering - narrowing a search of data
- Hash Value - the unique fingerprint of each file
- Keywords - words used to search ESI in the review process
- Metadata - information about the data
- Native Format - the original format for data
- PST - the file where e-mails are stored
- Preservation - maintaining the original data in an unaltered state
- Spoliation - the loss or destruction of data
How does e-Discovery work
The important threshold issue at the start of any business dispute or lawsuit is preservation of data. Companies can have written data management plans and preservation protocols in place that defines when they dispose of data and devices. Following such plans allows a business to avail itself of the safe harbor provisions in the rules in Florida.
What do I have to save and starting when
When you have a reasonable expectation of a dispute you must maintain data that is relevant to the dispute. How you determine what data is relevant and how to preserve that is a conversation to have with your business lawyer as early as possible in the process.
Contrary to common perceptions your business need not necessarily save everything all the time. Only relevant data must be preserved. Preservation of the ESI does not mean that it must be loaded into eDiscovery software at the outset of a dispute. eDiscovery software costs money to use. So maintaining ESI until it is necessary to search it using the software satisfies preservation obligations and contains the costs.
Contrary to common perceptions your business need not necessarily save everything all the time. Only relevant data must be preserved. Preservation of the ESI does not mean that it must be loaded into eDiscovery software at the outset of a dispute. eDiscovery software costs money to use. So maintaining ESI until it is necessary to search it using the software satisfies preservation obligations and contains the costs.
What data will I have to produce
Relevant and discoverable ESI is obtained through the existing discovery process. That means another party in litigation can request ESI through document production requests, interrogatories, and admissions requests. They can also ask for information in interrogatories about the storage and preservation of ESI. Likewise the other party can serve requests for admissions asking you to admit or deny that certain types of ESI exist or that they are preserved.
When it becomes necessary in a case to process and produce ESI your business attorney should work with you in the collection and assessment of the data before it is produced. eDiscovery software is efficient. It makes the process of searching and producing data very easy. The collection of the data is something with which the eDiscovery software company will assist you and your corporate counsel. So as long as your business properly preserves data the process of eDiscovery can be very efficient and effective.
When it becomes necessary in a case to process and produce ESI your business attorney should work with you in the collection and assessment of the data before it is produced. eDiscovery software is efficient. It makes the process of searching and producing data very easy. The collection of the data is something with which the eDiscovery software company will assist you and your corporate counsel. So as long as your business properly preserves data the process of eDiscovery can be very efficient and effective.
Conclusions about e-Discovery in Florida
eDiscovery exists to some extent in every case. Software can make the process easy if the expense is warranted by the dispute. Otherwise the sorting and production of data can be done differently. Most importantly for businesses is the preservation of certain data when there is a reasonable belief that there is or will be a dispute. The way that your business can take advantage of the safe harbor rules in Florida and insulate yourself from liability like spoliation sanctions is through a written data preservation plan prepared by and with your business lawyer.
Written by Board Certified business lawyer David Steinfeld
David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for over 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.
