It is 2013, yet the term “e-discovery” is still considered a dirty word in some circles.  Imagine that, we can use technology to check in on Facebook or send a Tweet from a smart phone in just about any corner of the globe, but when it comes time to litigate issues that invoke the dreaded “e word,” litigants and even judges become bewildered, shuttering at the thought of garnering the necessary evidence to successfully prosecute or defend against a claim through the use of 21st century technology.  It doesn’t have to be that way.

Most of the resistance to incorporating digital evidence into a case revolves around cost, and there is no avoiding the fact that e-discovery comes at a price.  One need not look any further than the recent decision by United States Magistrate Judge Michael Hammer in Juster Acquisition Co. v. North Hudson Sewerage Authority, 12-cv-3427, to realize both that e-discovery is a critical component of litigation, and that it comes at a price.  In Juster, Magistrate Hammer rejected the plaintiff’s contention that a request for e-mail discovery was too broad, unduly burdensome, unreasonably cumulative or duplicative, reasoning that all that all the plaintiff needed to do was run key word searches of its database.  Moreover, Magistrate Hammer ruled that the plaintiff would have to bear the expense of the necessary searches on its own, and that the costs would not be shifted to the requesting party. It is not as steep a cost as many think if done correctly, especially when the costs of not undertaking the e-discovery process are considered, but I’m not here to plug the vendors performing the valuable work in this space.  The real issues that I am here to tackle are some major misconceptions about a simple hyphenated word that has thrust its way into the legal lexicon as a product of the ongoing digitalization of our world.

One of the biggest misconceptions associated with e-discovery is confusion about what e-discovery really means.  As much as many clients (and, sadly, even some lawyers and judges) view e-discovery as just some exclusive, automated way of reviewing documents that only so-called “white shoe” law firms can afford, that is just not accurate.  E-discovery is actually a general term used to describe two separate, yet related, activities involving electronically stored information (“ESI”): (A) the collection of ESI through digital forensics to preserve the integrity and admissibility of the evidence; and (B) the production and review of ESI during the course of a case, including all of its constituent sub-parts, using specialized tools (i.e. software).  The former is necessary, in short, to ensure that the ESI is collected in a way that it remains admissible and credible for use at trial.  The latter is a way that the “techies” have devised for making the ESI usable by lawyers, their clients, and the courts (in other words, the “non-techies” among us) to garner the facts needed for a particular case.

via E-Discovery Doesn’t Have To Be A Dirty Word – Litigation, Mediation & Arbitration – United States.