As the world embraces a more collaborative way of working and uses new applications to communicate with one another, there is a corollary impact on other areas of the business such as legal and how they manage ediscovery and information governance. While many may already know the ropes, knowledge is power. Sometimes a little foundational review is beneficial for remembering everything that your organization needs to manage as technology evolves and new challenges emerge. This guide is intended to cover the basic language of ediscovery and an organization’s obligations to retain traditional and non-traditional sources of information for use in litigation.
WHAT IS EDISCOVERY?
Discovery is the exchange of information related to a dispute that is being litigated in court. The purpose of discovery is to give both sides the relevant facts about a dispute so that they—or the court—can figure out what happened and reach an appropriate resolution. For example, discovery might include the following:
in an employment discrimination case, internal communications about an employee’s qualifications or performance;
for a patent dispute, internal notes about how or when a patented invention was created; or
in a product liability claim, records or written conversations about a product’s potential dangers.
You may see the term “discovery” used to refer to both the information that is exchanged and the process of finding and exchanging that information. To have discovery information available for use in litigation, discovery professionals have to identify it and then protect it through the process of discovery so that it will be available should the organization—or its opponent—need it.
The “e” in ediscovery simply refers to the discovery of electronic information rather than hard-copy papers or physical objects. You might also hear this data referred to as ESI (electronically stored information). In the early days of ediscovery, most ESI was email. Now ESI includes all kinds of electronic information, such as these:
data from smart devices;
internal project notes and documents; and
communications that occur via email, text message, and collaboration apps.
WHAT INFORMATION ARE PARTIES ENTITLED TO SEE IN DISCOVERY?
The scope or extent of discovery is defined by court rules such as the Federal Rules of Civil Procedure (FRCP). All you really need to know is that discovery is generally broad and far-reaching. It includes any information that is both relevant and proportional to resolving the conflict.
Relevant information is anything that might help either party establish the truth of their claim or, on the other side, the strength of their defense. In a workers’ compensation case, information about how someone was injured on the job is clearly relevant. Hospital records? Relevant. Workplace safety records? Probably relevant. Notes about that time last July when the employee was late to work? Probably not relevant.
WHAT ABOUT THE REQUIREMENT THAT INFORMATION ALSO BE PROPORTIONAL?
The basic idea of proportionality is that a party doesn’t need to move heaven and earth to produce every speck of information that might relate to a case. If you’re disputing a $5,000 contract, you don’t need to—and shouldn’t—spend $100,000 on discovery.
ONE MORE THING: DISCOVERY DOESN’T ONLY APPLY WHEN SOMEONE FILES A LAWSUIT.
Instead, parties are obligated to prepare for the exchange of information whenever litigation is “reasonably anticipated.” For example, suppose someone slips and falls in a store and sustains an injury severe enough that they need to be carted away in an ambulance. That store can probably reasonably anticipate that the injured person might sue them for negligence in creating or allowing an unsafe situation.