E-Discovery

Electronic Discovery (E-Discovery) is used by the parties to a law suit, an administrative hearing or an arbitration.  In federal and state courts there are rules that specifically require the parties to disclose electronic information that is relevant to the law suit.  This electronic information (data) may be stored on a computer hard drive, a flash drive, an e-mail, a cloud, etc. 

A majority of all company information is stored electronically.  Data storage is therefore important for three basic reasons:  protection of corporate assets and customer information; storage costs; and the ease of data retrieval.  Therefore a data retention policy (where and how long a company stores its data) is no longer an option but rather a fiduciary duty for every size and type of corporation.
 

Learning Links

What Every Business Person Should Know About E-Discovery

This video covers the most important areas of concern surrounding E-Discovery.  It uses the E-Discovery Resource Model from www.edrm.net to walk through each step in the process.  The narrator describes the information necessary in order to ensure that your E-Discovery goes smoothly.  He emphasizes the importance of the first phase of the process: identification. 

Identification of relevant data can be one of the most costly phases in E-discovery to an organization if not executed well.  During the identification step, it is very important to have data management policies in place so that you find the data that you need with ease.  If this is not done, the data can be spread all over servers, lap tops and USB drives.  Searching for data will eat up productive time for your employees and cost a lot of money.

E-Discovery Definitions

An alphabetized listing of terms used in e-Discovery that are necessary to understand the process.

Michigan E-Discovery Guidelines

This article from the Michigan Bar Journal by Dante Stella discusses Michigan’s E-Discovery guidelines and specific rulings within the state.  Stella covers changes in Michigan’s court rulings surrounding E-Discovery.  He highlights many things that can help lead to success during E-Discovery. 

Something that cannot be overlooked is the importance of understanding preservation obligations because ESI-related risks cannot always be eliminated upfront.  Some precautions that can be taken in order to avoid discovery and spoliation sanctions are to keep relevant backups, identify the most important people and systems, avoid changes to data retention practices during litigation, and watching departing employee’s data.  While these guidelines do not guarantee success they give a framework to work within providing you define the scope of the risks of E-Discovery related sanctions.

Data Retention Policies

A compilation of policies regarding data retention for a variety of companies that crosses industries.  You can search for policies based on keywords.

E-Discovery and Human Resources

In the not-so-distant past, handling employment disputes was simple: museums could hire a third-party arbitrator to handle disputes.  The arbitrator would collect some paper records, interview the people involved, and make a decision, and the total cost may have been $7,000 to $10,000.  But changes in technology and the law have turned that paradigm upside down.

In December 2006, changes to federal law created new litigation requirements: any organization involved in a federal lawsuit is now required to consider electronic evidence.  Museums must now turn over e-mail, voicemail, text messages, electronic documents, databases, and any other “electronically stored information” (ESI) that may be relevant to the dispute.  This process is called electronic discovery.

Page last modified March 10, 2014