Electronic Discovery

Electronic discovery (sometimes called e-discovery) refers to any process in which electronic data is sought, located, secured, and searched with the goal of using it as evidence in a civil or criminal legal case. E-discovery can be performed offline on a specific computer (or electronic device) or it can be accomplished in a network. Court-ordered or government sanctioned computer forensics for the purpose of obtaining critical evidence is also a type of e-discovery.

E-discovery is an evolving field that is far greater than just the issue of technology. It can potentially involve multiple legal, constitutional, political, security, and personal privacy issues—many of which have not yet been fully defined by court decision.

Key elements

  • Court decisions dating back a few years, and a more recent court rule change December 1, 2006, require entities to focus on electronic documents that relate to anticipated lawsuits.
  • All electronic data is potentially discoverable (subject to applicable privileges) including but not limited to, e-mail, other active information stored on servers, and back-up tapes/media capable of restoration even if deleted at some prior time.

Key obligations on state agencies

  • Must preserve data whenever there is a reasonable anticipation of a lawsuit.
  • Must suspend the agency routine document retention/destruction policy.
  • Identify key players who may have relevant documents.
  • Identify all sources (computers, jump drives, Blackberry etc) of relevant documents.
  • Put a written 'litigation hold'; in place directing preservation of all the relevant documents wherever located.
  • Make the agency IT department aware of the litigation hold.
  • Preserve everything until it can be reviewed with counsel any and all decisions including those about subject matter of documents, the key players, the time frame, whether stored data such as back up tapes/media are accessible or inaccessible, and how these will be preserved.
  • Draft a written preservation plan and review it with counsel – it is the agency plan and the agency has the responsibility to see that it is followed. Do not attest that the agency has made a 'diligent search' without a written outline describing what the agency did. Review that outline with agency lawyers – get advice on the adequacy of the agency’s efforts.

Continuing state agency obligations

  • Quarterly follow up for the duration of the dispute/lawsuit to be sure that documents are identified and retained on a continuing basis.
  • Follow the agency lawyer’s preservation related instructions on an ongoing basis.
  • Send periodic written reminders to key players of obligations.

Consequences of failure to meet obligations

  • Payment of the opposing party’s legal costs
  • Serious monetary sanctions
  • Preclusion of evidence
  • Adverse inference instructions
  • Default judgment

Useful resources