Electronic Discovery Page
eDiscovery is an industry that is not fully understood by litigants, counsel and judges. There are great references on the subject available from a variety of sources. The purpose of this page is to be a reference on the guidelines, best practices, case law and other relevant matters pertaining to the subject of eDiscovery. Please visit periodically as this information will be updated as new material is made available.
Federal eDiscovery Best Practices
An early source for eDiscovery practice and procedures is the Sedona Conference Working Group Series on Electronic Document Retention and Retention. With publications on the subject of eDiscovery going back to 2003 and updated in 2007 in response to the changes in Federal Rules of Civil Procedure and case law, the Sedona Working Group has developed recommendations and best practices regarding all aspects of the subject that are freely available for download and printing. Please consider that states and local interpretations may vary from the Federal Rules of Civil Procedure.
The use of electronic evidence has been in place for many years, but the guidelines on its data retention, discovery, production and usage have been changing at both the state and federal levels. Whereas the federal courts have issued guidelines pertaining to electronic evidence, most states lag much farther behind. This information is provided as is and is subject to the terms and conditions of this web site. If you find other information relevant to the subjects covered here, please pass it along for inclusion.
Differentiating Electronic Evidence from Paper Based Evidence in Civil Litigation
Electronic evidence is different than paper evidence in a number of ways that introduce new challenges to civil litigation. With these new challenges come the need for new strategies to ensure clients are getting full and proper representation of their case. Below are descriptions of the most commonly cited considerations. The considerations and strategies needed to address them are described in this section of the site.
The most notable of these differences is the volume of documents, spreadsheets, emails, database records, images and other data forms. This is due in large part to the ease of creation, low cost and compact nature of network and local storage systems. Space limitations within an office often required discipline to manage old or irrelevant paper based information, now documents or folder is copied out of the way and retained "just in case" it is ever needed in the future.
Another unique aspect of electronic evidence is the tendency of a document to be duplicated as an exact copy or duplicated and modified. Once a document or other data is created, it often is copied to other locations, backups are created or the document is sent to other individuals via email. A single email with a document attached and sent to 5 people can result in 12 to 17 instances of the document even before the first backup or modification is made. This is because each of the email servers store a copy and each workstation can store multiple local copies depending on the circumstances. When you add standard backup strategies, that single document could easily exist in excess of 250 times although not all may not be subject to discovery.
The large volumes of information brings particular challenges around search and production as well as protecting confidential information. Numerous strategies and tools are available for managing the search and production, while protecting confidential information can be somewhat more difficult.
This page will be updated with new information on a regular basis.
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