Discovery has been a part of legal cases long before the advent of the Internet. But the Internet has allowed discovery to evolve, extracting information from involved parties’ e-mails, social media activity, online forum postings, and more.
As digital information has become an increasing part of court cases, businesses and individuals are being made aware of the dangers of such information being discoverable. In the event of legal action, a person’s every action could be traced using the very devices they consider personal. This possibility means it’s important to be aware of exactly what is and isn’t discoverable.
To fully understand ediscovery, it’s important to first take a look at discovery in general. The discovery phase of a lawsuit generally happens before a trial begins. Working through the courts, parties from each side issue subpoenas for items pertinent to the case. This can include documents, photos, surveillance videos, depositions, bank records, and other similar items.
Under the law, items must only be seen as potentially pertaining to evidence in the case to be discoverable. The judge has very little part in the discovery process, allowing attorneys to collect the information to later present in trial.
The discovery process itself can be expensive and time-consuming, not necessarily yielding the desired results.
Failure to cooperate in discovery proceedings can lead to being found in contempt of court. While there are serious consequences for not fully cooperating, the discovery phase is not the same as a search warrant. Information could be omitted and never “discovered.”
Today, everyone is armed with at least one electronic device. Most people have multiple devices that include some combination of smartphones, tablets, laptops, or desktops. For those employed in the business world, the number of devices often multiply, with many consumers still having at least one work-issued device in addition to their personal devices.
Recognizing this, the legal system has begun including information on these electronic devices as part of the discovery process. Called “ediscovery,” the process is still part of the larger discovery phase of a trial, but with ediscovery, entities greater than the involved parties could be subpoenaed. For instance, a court could get a worker’s e-mail from the company server, leaving an employee no control over the items being discovered.
Electronic records have changed legal cases in many ways. Attorneys can go beyond simply retrieving documents, extracting metadata that reveals dates and locations where documents or pictures were created and server data that shows when data was exchanged at the server level.
The fact that e-mails and social media posts are discoverable is a given, but other types of files are subject to discovery, as well. An individual’s PowerPoint presentations, text documents, database files, voicemails, and YouTube videos could be pulled in as part of a court case. As with paper files in the discovery process, some information must be redacted if it discloses information like personal health data or social security numbers.
When litigation is pending, parties may be asked to set potentially pertinent data aside as part of a litigation hold, where it cannot be erased for a set period of time. Often e-mails, devices, and server data can wait, untouched, at a business for years until the legal hold has been released.
Phases of eDiscovery
Ediscovery has five major phases within the American legal system. Those phases are:
- Identification—During the identification stage of electronic discovery, parties research items that might be relevant to the case. Attorneys put in place a plan to obtain these items that fall within the confines of the current laws pertaining to discovery. Attorneys also identify key players that possess the information and locate contact information for those players. Those players could include a company’s information systems department, records managers, human resources staff, and other relevant personnel. During this process, team members will be assigned to handle contacting these resources.
- Preservation—Once relevant information has been identified, legal counsel will work to ensure that data is protected. To prevent data destruction, the holders of that data will be ordered to keep that data for a set period of time. This can be a costly process, since equipment and server space may be required to be set aside in order to keep this data well beyond its normal retention period. For example, a company may have a policy that e-mail is only retained for three months. A legal hold could require numerous e-mails be retained for years. The organization is then paying for server space and tech support on this data.
- Collection—This stage is the process where data is transferred from original owners to the legal team for use in preparing for a case. Technology has eased this process, but many legal teams are still challenged on how to collect and store volumes of data. There is also the challenge of ensuring data is provided in a format that can be used by the legal team, both in preparing the case and presenting it in court.
- Processing—During the processing phase, the data is converted to a format that can be used in court. In some cases, digital files are transferred to more paper-friendly versions, such as PDFs. The team will also be required to preserve all metadata on files, since metadata can include the crucial information like dates and times.
- Review—During the review phase, legal staff go over this documentation to ensure each item is relevant to the case.
- Production—Once data has been reviewed, it is now ready to be revealed to opposing counsel. Staff prepares all pertinent data for presentation and puts it in the requested file format.
The emergence of Bring Your Own Device (BYOD) policies in workplaces has led to a new set of concerns in regards to ediscovery. With BYOD, an employee uses his or her own personal device—an expense the employer may or may not reimburse.
All data is subject to ediscovery, even if that data resides on a personal device. Even if an employee purchased his or her own laptop, tablet, or smartphone, if those items contain work-related data, the data on those devices could be confiscated.
Ediscovery has presented new challenges for businesses, which must now put strict policies in place to protect itself in the event of legal action. In the event of ediscovery, these policies will prove crucial in protecting a company. All employees should also be required to sign a security agreement that includes information on how ediscovery requests will be handled.
Vital information about the E-Discovery process explained in basic terms that everyone can understand.
For more information go to: http://www.gvsu.edu/arbitrations/