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 Blacks 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...

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...

…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.

Conclusion

The research showed that both discovery and e-discovery share many commonalities, including most especially the acquisition of knowledge of given acts or facts which may be relevant for civil or criminal legal proceedings. Identifying relevant information from millions of pages of newly discovered information, however, was also shown to be an especially difficult process that demands a careful and thoughtful approach to what type of information is sought and how it is analyzed. In addition, the research was also consistent in showing that…