Like many things these days, there is an electronic version of discovery used in a court cast. It is called electronic discovery, or like e-mail, is simply shortened to e-discovery or ediscovery.

In this Litigation Guide guide article we discuss what e-discovery is and how it is used in court.

E-discovery is the practice of searching for evidence in electronically stored information (ESI), and it is used mostly in civil litigation cases. They types of cases vary widely. Making libelous claims about a person online, an employer illegally accessing employees email and making threats are just a few of the common types of civil litigation in which e-discovery can be important.

In today’s world, when so much information is stored online, that information becomes a rich source of evidence. Sharp litigation attorneys understand that the information can be used to support their position in many types of cases. Types of ESI that are mined for evidence by civil litigation lawyers include social media pages from Facebook et al, voice mail, database information, IM chats, YouTube videos, text messages and in some cases, emails. The metadata behind the posts can also be important. It will establish when the post was made.  Companies acting as the custodian of these types of information are now required by law to keep them archived. They cannot be destroyed. In some arenas such as the federal government, destroying emails or other types of electronic information is against the law.

The Process of E-Discovery

When a civil litigation attorney finds something online that would be useful to the case, this is called identification. The custodian of the information, often a website on which it is found (Facebook, YouTube), is identified. Data mapping of the post or page will be done to establish when the information was posted. The next step is known as preservation. This is where the litigation lawyer contacts the custodian of the document and places the information on legal hold, preventing its destruction. Even if the information is taken down from public view, the custodian will be required no to destroy it.

Collection is the next step. The native files containing the information are transmitted to the litigation attorney for use as evidence in a civil litigation case. The attorney might store the PDF or TIFF versions in order to process them more easily. Once a litigation attorney finds something that he or she intends to use in the case, it must be turned over to litigation attorneys for the other side.

Litigation lawyers will use specialists in helping them with e-discovery. These include IT managers, forensic specialists and records managers.

The information obtained through e-discovery can then be the basis for a pretrial settlement between the litigants or used in court as evidence.