How E Discovery Differs from Traditional Discovery Methods

E-Discovery in the 21st Century

Today, litigants in the United States have a number of tools available to them which can be used to build their cases, including most especially the use of so-called “e-discovery” to facilitate the acquisition of documentary evidence that can be used in civil and criminal proceedings. Unlike the conventional subpoena duces tecum, though, e-discovery strategies are akin to drinking from a firehose in terms of the amounts of data that can be obtained, making the need to apply effective e-discovery methods paramount. To determine best practices in this emerging legal process, the purpose of this paper is to provide a review of the relevant literature to define e-discovery and to identify successful e-discovery methods. In addition, an assessment of the future of e-discovery is followed by a summary of the research and important findings concerning this trend in the conclusion.

Defining E-Discovery

According to the general definition provided by Black’s Law Dictionary (2008), discovery is “the ascertainment of which was previously unknown” [or] “the acquisition of notice or knowledge of given acts or facts; as, in regard to the ‘discovery’ of fraud affecting the running of the statute of limitations, or the granting of a new trial for newly ‘discovered’ evidence” (p. 466). Although e-discovery likewise achieves these outcomes, the process is different by virtue of acquiring evidentiary documents in some type of digital form. For example, according to the definition provided by Cluster (2022), “E-discovery is short for electronic discovery, which is defined as the process of discovery in civil litigation that is carried out in electronic formats” (para. 4).

This broad definition of e-discovery means that all types of electronically stored information (ESI) are subject to e-discovery requirements, including commonly used digital media such as emails, documents stored in digital formats, instant messaging chat records, accounting databases, Web sites, various CAD/CAM/DVD files or any other digital information that may be relevant for prosecuting or defending a lawsuit (Cluster, 2022). In addition, e-discovery also applies to metadata files and raw digital data that may contain concealed evidence relevant to a case (Cluster, 2022). In other words, discovery and e-discovery are essentially the same legal tool with the major difference being the format in which the evidentiary documentation is stored (Edwards, 2015). This major difference also means that the most successful strategies that are used for e-discovery may differ in significant ways from conventional approaches as discussed further below.

Successful E-Discovery Methodology

The main legal and administrative tenets that are applicable to conventional discovery methods are likewise relevant for e-discovery of ESI. In this regard, Edwards (2015) reports that, “The principles that govern the discovery of ESI are the same as traditional non-computer evidence” (p. 5). This similarity suggests that legal practitioners do not necessarily need to reinvent the moon when developing e-discovery methods, but it does mean that they must recognize any substantive differences that can affect the results of their discovery efforts. Indeed, there is an important difference between conventional discovery methods and e-discovery methods that legal practitioners must take into account when formulating their e-discovery methodology in order to achieve optimal outcomes.

First and foremost is the practical matter of the sheer amounts of data that may be involved when ESI files are involved. Indeed, the recent e-discovery methods that were used by the Select Committee to Investigate the January 6th Attack on the United States Capitol have generated the equivalent of millions of pages of documentary evidence which were stored in digital formats of some type, and separating the irrelevant chaff from the actual evidentiary wheat is clearly a daunting enterprise with this volume of information (About the Select Committee, 2022). This point is also made by Gonzalo (2017) who notes that, “Today's world of emails, computer-generated documents, and ESI has changed the way we conduct discovery in modern litigation. It is no longer unusual to have thousands-or even millions-of documents exchanged between or among parties during the course of a case” (p. 14).

Likewise, the metadata that is obtained through e-discovery may also involve massive amounts of raw data that require careful analyses by skilled forensics experts before any meaningful evidentiary results can be obtained. For example, according to Gable (2015), “Lawyers want metadata because it can be used to show things not evident from the document’s content alone. Comparing a document’s system metadata and substantive metadata may be used to show that a document was tampered with” (p. 29). Moreover, other evidence may emerge from the analysis of metadata serendipitously in ways that are not usually possible with conventional discovery methods (Edwards, 2015).

Even when metadata files are not involved and only documentary files of some type are obtained, though, analyzing this amount of information to identify what is sought is likewise a challenging endeavor. In this regard, Cluster (2022) points out that, “E-discovery applications and technology enable organizations to pull information and records from the massive volumes of content that span the enterprise, including emails, and eliminate exact copies to reduce the effort and cost of reviewing the remaining content. This can be costly and time-consuming” (para. 8). Given this significant analytical constraint, it is vitally important for legal practitioners to proceed thoughtfully while emphasizing the need for transparency and cooperation between the parties to a lawsuit in order to avoid unnecessary disputes while also maintaining a focus on the legitimate issues that may be involved in an e-discovery proceeding (Edwards, 2015).

There are some other strategies that can enhance the success of an e-discovery methodology for targeted organizations as well. For instance, Cluster (2022) recommends using a classification scheme which provides a consistent information and records management framework in which information that has business value can be stored and properly managed while those without any business value can be routinely disposed of in accordance with organizational policies. In sum, Cluster (2022) concludes that, “The best practice is to prepare before you have to act. The costs and management of e-discovery can be lowered and managed through the implementation of a records management program and the use of an Electronic Records Management (ERM) system” (Cluster, 2022).

The Future of E-Discovery

Given the recent trends in the use of digital communications, it is reasonable to posit that most if not all future discovery proceedings will involve at least some digital information. In fact, the exponential growth of social media platforms in recent years is proof positive that the proliferation of electronically stored information will continue to accelerate well into the foreseeable future (Sipior et al., 2017). This eventuality also means that legal practitioners who have neglected the differences between conventional discovery and e-discovery will be at an increasingly severe competitive disadvantage in civil and criminal proceedings.