E-Discovery in the 21st Century: Methods and Future Trends

Introduction

Today, litigants in the United States have a number of tools available to them for building their cases, including most especially the use of so-called "e-discovery" to facilitate the acquisition of documentary evidence in civil and criminal proceedings. Unlike the conventional subpoena duces tecum, 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, this paper reviews the relevant literature to define e-discovery and to identify successful e-discovery methods. An assessment of the future of e-discovery is followed by a summary of the research and important findings in the conclusion.

Defining E-Discovery

According to the general definition provided by Black's Law Dictionary (2008), discovery is "the ascertainment of that 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 differs by virtue of acquiring evidentiary documents in some type of digital form. According to 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 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, websites, various CAD/CAM/DVD files, or any other digital information that may be relevant for prosecuting or defending a lawsuit (Cluster, 2022). 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 difference also means that the most successful strategies 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 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 wheel 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. There is, in fact, an important difference between conventional discovery methods and e-discovery methods that legal practitioners must account for when formulating their methodology in order to achieve optimal outcomes.

First and foremost is the practical matter of the sheer volume of data that may be involved when ESI files are at issue. The recent e-discovery methods used by the Select Committee to Investigate the January 6th Attack on the United States Capitol, for example, generated the equivalent of millions of pages of documentary evidence stored in digital formats, and separating the irrelevant chaff from the actual evidentiary wheat is clearly a daunting enterprise at this volume (About the Select Committee, 2022). This point is reinforced 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, metadata obtained through e-discovery may also involve massive amounts of raw data requiring careful analysis by skilled forensics experts before any meaningful evidentiary results can be obtained. 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, analyzing large volumes of information to identify what is sought remains a significant challenge. As Cluster (2022) points out, "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 analytical constraint, it is vitally important for legal practitioners to proceed thoughtfully, emphasizing transparency and cooperation between the parties to a lawsuit in order to avoid unnecessary disputes while maintaining focus on the legitimate issues involved in an e-discovery proceeding (Edwards, 2015).

There are additional strategies that can enhance the success of an e-discovery methodology for targeted organizations. Cluster (2022) recommends using a classification scheme that provides a consistent information and records management framework, in which information with business value can be stored and properly managed while information without business value can be routinely disposed of in accordance with organizational policies. As Cluster (2022) concludes, "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."

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" relevant to civil or criminal legal proceedings. Identifying relevant information from millions of pages of newly discovered material, 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. The research was also consistent in showing that the proliferation of digital information will invariably result in an increased use of e-discovery methods in the future.

References

About the Select Committee. (2022). U.S. Congress. Retrieved from

Black's law dictionary. (2008). St. Paul, MN: West Publishing Company.

Cluster, B. (2022). What is e-discovery? The Association for Intelligent Information Management. Retrieved from

Edwards, T. (2015, April). Planning for electronic discovery in the digital age. The Computer & Internet Lawyer, 32(4), 1–6.

Gable, J. (2015). Examining metadata: Its role in e-discovery and the future of records managers. Information Management Journal, 43(5), 28–32.

Gonzalo, L. M. (2017). Inadvertent disclosure in e-discovery: How to avoid waiver of privilege. Minority Trial Lawyer, 15(4), 14–18.

Sipior, J., Ward, B., Volonino, L., & MacGabhann, L. (2017). A framework for the e-discovery of social media content in the United States. Information Systems Management, 30(4), 352–358.