e-Discovery or electronic discovery is the process of obtaining and exchanging electronically stored information or ESI in a civil lawsuit. ESI can include emails and digitally stored documents. Lawyers commonly use software to efficiently sort through that data. This article is an explanation of what e-Discovery is and how it works.
Today businesses receive, store, and exchange most of their data electronically. This is done through a variety of mobile devices beyond desktop computers. eDiscovery has existed in federal cases dating back to at least 2005. In recent years the state court procedural rules in Florida were amended to specifically provide for eDiscovery. It is now common in almost ever case.
Basic eDiscovery terminology Some of the common and important terms used in eDiscovery are:
When you have a reasonable expectation of a dispute you must maintain data that is relevant to the dispute. How you determine what data is relevant and how to preserve that is a conversation to have with your business lawyer as early as possible in the process.
Contrary to common perceptions your business need not necessarily save everything all the time. Only relevant data must be preserved. Preservation of the ESI does not mean that it must be loaded into eDiscovery software at the outset of a dispute. eDiscovery software costs money to use. So maintaining ESI until it is necessary to search it using the software satisfies preservation obligations and contains the costs.
When it becomes necessary in a case to process and produce ESI your business attorney should work with you in the collection and assessment of the data before it is produced. eDiscovery software is efficient. It makes the process of searching and producing data very easy. The collection of the data is something with which the eDiscovery software company will assist you and your corporate counsel. So as long as your business properly preserves data the process of eDiscovery can be very efficient and effective.
Conclusion eDiscovery exists to some extent in every case. Software can make the process easy if the expense is warranted by the dispute. Otherwise the sorting and production of data can be done differently. Most importantly for businesses is the preservation of certain data when there is a reasonable belief that there is or will be a dispute. The way that your business can take advantage of the safe harbor rules in Florida and insulate yourself from liability like spoliation sanctions is through a written data preservation plan prepared by and with your business lawyer.
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Written by David Steinfeld
Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.