E-discovery is a recently-coined buzzword in the legal sphere for discovery dealing with electronic documents. While much of the nuts and bolts of e-discovery are handled on the lawyer’s end, savvy clients should also have a basic understanding of the process, so that they can properly vet their potential business litigation attorneys. This type of discovery has gained a lot of attention over the past decade as computers have come into more widespread use in the business world. This has led to a proliferation of emails and increased the amount of documents that companies keep now that space is not a constraint. However, this massive increase in the number of documents has made discovery a more difficult process.
What E-Discovery Is
Discovery is a legal process in which lawyers on both sides of a case ask for information from the other side to help build their case. One of the most basic ways that this is done is through a “request for production.” These are documents asking the other side to send the lawyers all the documents that the company has related to some portion of the case. In the days before electronic storage, this was usually a relatively modest number of documents since there were limits to how much paper a company could store.
Electronic documents changed all that. Now companies end up having to produce emails, memos, and other computer files in addition to their physical paper. This has severely increased the complexity of the discovery process in complex commercial litigation.
What Makes E-Discovery So Complicated
The complexities of e-discovery all stem from the massive volume of documents that end up needing to be given to the other side and reviewed. An industry study recently found that the average e-discovery project required the review of 479 gigabytes worth of documents. For a sense of scale, a single gigabyte of documents would take up about 30 bankers boxes. This leads to two related problems, the problem of inadvertent disclosure and the problem of review.
The problem of inadvertent disclosure is a problem for the person producing documents. Companies are not required to produce certain documents during discovery, such as documents that are protected by attorney-client privilege. However, with so many documents to send out, it is possible that privileged documents can accidentally be sent along with them. While there are rules governing what happens in these scenarios, it is never a situation a client wants to be in.
Inadvertent disclosure is really a subset of the problem of review. With thousands of bankers boxes of documents, it is simply difficult to know what is really in them. Fortunately, there are ways of dealing with this issue in a cost-effective manner. The use of contract attorneys and advanced software can help highlight important or privileged documents quickly and without needlessly driving up the price of litigation.
If your company has recently been sued or you are considering filing suit yourself, reach out to a Florida commercial litigation attorney at Pike & Lustig, LLP for help. Our firm is familiar with the practical side of business litigation and can help guide you through it.