E-Discovery: What is it?

In any lawsuit, including family law cases, it is common to engage in the process of discovery.  In essence, discovery is intended to allow each party in the litigation process to collect information which is reasonably calculated to produce admissible evidence in advance of a court hearing or trial.  Failure by a party to respond to discovery requests may result in serious sanctions by the court and may also result in an overall negative outcome for the party who does not comply with the rules of discovery.

Discovery takes on a variety of forms and can be an exhausting and time consuming undertaking.  Traditionally, the discovery process is “paper-rich” and may include the preparation of and answers to questions (referred to as interrogatories), the preparation of and response to requests for the production of documents, and depositions or the taking of testimony under oath of the parties or other witnesses.

As our more and more of our means of communication take place electronically, discovery also encompasses the recovery of electronically stored information (ESI).  Retrieving ESI can be a much more complicated procedure than merely copying documents and courts have been developing rules to govern this process.  Certain difficulties emerge when collecting ESI.  For example, electronic records have multiple facets, including metadata, which may be considered privileged information. Metadata, at its simplest definition, is electronically embedded details about a data file, such as the date it was created, its author, or its connection to other files or information. Connections to otherwise confidential documents could potentially make that metadata privileged and not subject to discovery.  It can be a complicated process to distinguish this privileged information.

Discovery rules in the federal and Maryland court systems require parties to disclose their intention to use ESI to support their claims or defenses and to produce this information so long as it is reasonably accessible. Reasonably accessible means it does not place a substantial burden or cost on the producer. These burdens are reviewed on a case-by-case basis.  Another key issue in the world of e-discovery relates to the preservation of ESI as evidence when deletion of ESI can be a common occurrence.

Not surprisingly, over the past decade, sophisticated software, accompanied by a veritable army of consultants, has been developed to manage the process of e-discovery.  It would be a safe bet to predict that e-discovery will increase in litigated cases in the future.