What Does E-Discovery Mean In a Lawsuit and How Does It Affect You

E-Discovery, commonly known as electronic discovery, is the process of discovery in litigation or investigations dealing with information that is stored in electronic formats. This format is often referred to as electronically stored information, or ESI. ESI can reside on computer hard drives, data packs, in emails, text messages, IMs or other electronic media. Today, 90 percent of corporate, company, organizational information and records, reside in computer files as opposed to paper or hard copy.

The new Federal Rules of Civil Procedure (FRCP), amended in 2006, specifically address the processes involved in identifying, maintaining and producing ESI, in discovery procedures. Today, big data means massive databases of information, text, statistics, records, facts and other figures added to the roster of e-discovery materials, and the volume of computer data and files continues to grow ever larger.

Regulations have grown also, both federal and statewide, and include:

  • Version 3.0 of the PCI DSS
  • Computer Fraud and Abuse Act
  • Controlling the Assault of Non-Solicited Pornography and Marketing Act

Managing the massiveness of big data in e-discovery is quite a challenge. Law firms and litigation lawyers are required to wade through e-discovery information thoroughly and quickly. Litigation requires a prompt turnaround in document discovery, electronic or otherwise.

Often lawyers are given 30-days within which to complete the discovery process. At least 50 percent of litigation expenses are tied-up in reviewing documents. Fortunately cloud computing and the proprietary software applications have enabled thorough and timely searching and access for e-discovery and other purposes.

Data Breaches

Breaches in data security have been on the rise and since the Target incident in late 2013 there have been over 70 data breach class action lawsuits alone. Target itself is facing at least 3 class action lawsuits where consumers are claiming that Target was negligent and failed to maintain the safety and security of customer information, hence the theft of information from 40 million customers credit and debit cards.

Breaches of information are generally a result of hackers, computer theft, employee theft or negligence. One way or the other, illegal access to customer, client, student or patient information is involved. The results of data breaches include identity theft.

Identity theft and data breach lawsuits are on the rise. Data breaches are not limited to internet-based transactions. They occur in brick-and-mortar retail stores also, both large and small, malls, universities, hospitals and healthcare centers, anywhere financial point-of-service payment systems reside. Some of the companies recently breached include Adobe, Target, Facebook, Sony PSN, Neiman Marcus and TJX, owner of TJ Maxx and Marshalls.

Records and Information Management Programs

Multiple lawsuits and litigation cases involving the improper management and production of ESI has resulted in massive fines for corporations. Failure to report financial transactions and a failure to respond, in a timely way, to a government request via email, are just 2 examples of corporations that suffered millions of dollars in compensatory and punitive fines. It has become a necessity for companies and organizations to build and maintain a records and information management (RIM) program.

RIM programs allow companies to systematize the saving, retention and eventual discarding, of unneeded, electronic records and information.

Some of these requirements include:

  • Corporate entities and others recognize the need to establish and maintain record retention requirements.
  • Accurate and timely, searches and retrievals are vital for core business activities, maintaining competitiveness and profitability.
  • Enforcement of a centralized quality assurance and governance policy that provides data security and integrity.

Retention of electronic files should also identify a time frame for their destruction. This can result in substantial savings on storage expenses while minimizing the risk of security breaches.

E-discovery in litigation must require:

  • Categorical and chronological searches
  • Thorough access to all data, emails, text messages, microfiche, photos, faxes – All access
  • All formats are accessible including: pdf, jpg, doc, docx, xls, xlsx, ppt, msg, txt, csv, xml, dat
  • Faster retrieval using advanced search and sort algorithms.

Retention scheduling

Lawsuits associated with identity theft, data and cyber-security breaches, medical liability and medical negligence accusations with only electronic medical records, employment discrimination where the court denied e-discovery via access to the defendant’s email, are all areas where e-discovery is mandatory if any discovery is to occur.