E-Discovery is short for “electronic discovery,” and refers to the process of collecting, processing, producing and presenting evidence that exists in electronic / digitized formats – i.e., electronically stored information or ESI. ESI is something that has become part of our ordinary personal / professional / business lives. We now communicate by email – not post – with an estimated 100 billion emails being generated daily. Most of our personal and business transactions are conducted electronically: purchases with credit and debit cards, timekeeping, payroll with automatic deposit, banking with automatic bill pay, financial record keeping and tax reporting, insurance and medical records, design services, project management. It is the rare hard copy document that is not first generated on a computer. So, when “communications,” “transactions” and “documented” events are in issue or the subject of dispute, the chances are that E-Discovery will be necessary to some degree.

How ESI is collected, processed and handled at the front end of a dispute may create issues and become the subject of requests to exclude evidence, award sanctions and/or draw negative inferences at the back end of the process, keeping in mind that the rules, processes, practices and procedures that have developed concerning ESI in the litigation context are focused on commerce. How do you capture and preserve what is on a computer or server that may be relevant to proving or disproving a disputed fact in a litigation matter, and – at the same time – allow the computer or server to stay online and be used for its daily business purpose? Because ESI tends to be voluminous and is highly manipulatable, this is a challenge!

REALITY: What is quickly becoming a “paperless” society has rendered our “manual” / “paper” methods of search and review unsustainable. ESI has also changed how we establish chain of custody, foundation and authenticity because so much information and data is shared through networked and “cloud” servers and carried on portable equipment like cell phones, I-pads, etc. It has also changed our frame of reference in terms of the size of the world of evidence we’re dealing with. We no longer measure the size of a production by how many pieces of paper must be collected and reviewed – e.g., a redwell, a banker’s box, 10 banker’s boxes. We now measure in terms of gigabytes and how much server space or how large of a storage device will be needed. The bottom line is that E-Discovery needs to be planned out and coordinated, with an eye to keeping the discovery project proportional to the issues at hand (a subject for a later paper).

Suggested “guidelines” for dealing with E-Discovery in arbitration are posted on the Templates page of this website, or you can CLICK HERE