E-Discovery Defined

E-Discovery is the process of requesting, locating, and acquiring electronic data in civil or criminal litigation.  Today, virtually all information is in electronic format.  Electronic discovery (or e-discovery) is discovery in which the information or data is in electronic format.  It is in many forms in many different places from smartphones to Facebook, to the clouds (cloud computing will be defined later).  This data is called ESI or Electronically Stored Information.  It can become evidence in the litigation and MUST be produced.  ESI is used interchangeablly with the term "e-evidence", although not all ESI is evidence.  Be prepared to ask questions and listen closely with a discerning ear so that you will not make the mistake of assuming they are one and the same when discussing the subject with your attorneys or discovery vendors.

As you remember from your paralegal studies, discovery is the investigative stage of litigation in which parties collect, prepare, review and produce information about the subject of the litigation.  This includes ESI, that is, electronic information such as e-mails, spreadsheets, audio, video, and other data stored on a computer network, backup or other storage media. E-Discovery includes metadata.  Metadata is the story of a document.  It is the embedded history of the document and tells the story of the document from who produced it, who reproduced it, when it was produced, revisions made to the document, when the revisions were made, and so on.  The metadata of a document tells you more about the document than the page you hold in your hand.  Metadata is in all applications, not just email and wordprocessing.  Even your copier holds metadata!  Copiers can also embed metadata into a document.  Metadata is very important in e-discovery and will be discussed in detail later.

E-discovery has far-reaching implications that go far beyond technology. It raises multiple legal, constitutional, political, security and personal privacy issues, many of which are the subject of cases currently in the Supreme Court such as the recent case regarding text messaging.

Following are several books and a link that I highly recommend as "easy reading" introductions to e-Discovery. These books will give you a solid foundation in the field and enable you to jump into any stage of the process with confidence.

1.  Paralegal Today - A Paralegal's Guide To Understanding e-Discovery