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Electronic Information Changes the Face of Litigation

Q: We see the word “e-discovery” in court cases.  What is that, anyway?
A: 
The term literally means “electronic discovery.” In our legal system, “discovery” is the process before a trial where each side gets to obtain information about the other’s case. The theory behind it is that the system works best and most efficiently if parties have and can evaluate critical information before a case is tried. “E-discovery” simply refers to that discovery process as it relates to electronic information.

Q: What kind of electronic information are we talking about?
A: 
In all discovery, the parties are entitled to obtain information that might become evidence to be used at trial. In other words, the parties can obtain information that might reasonably have something to do with the case. The most obvious kind of electronic information that might be shared during discovery is an email or a text message including a party’s statement that is important to the case. We see examples of this in the news almost every day. “Discoverable” electronic information might also include word processing documents, information about when phone calls were made, or data about a business–literally anything that is kept in electronic form.

Q: Why is e-discovery important?
A: 
First, the availability of electronic information changes the nature of litigation. Frankly, people do not always think before they send an email, for example. They say things in emails they would not say face to face, or in a formal letter or memo. As a result, more often in litigation now than in the past, it is possible to discover what somebody was really thinking, because this information was put into a text message or email.

Second, e-discovery has, in many cases, greatly increased the expense of litigation. In a discriminatory firing case, for example, a plaintiff may ask the former employer to provide extensive email and other electronic information for the plaintiff’s review. To thoroughly extract this information from every place it might exist in a large company can be much more expensive than “old fashioned” paper discovery. This additional expense can affect the parties’ decision about whether to aggressively pursue a case to trial or settle the case out of court.

Q: Are there special rules about e-discovery?
A:
 Some. For example, in many courts, the parties must meet before beginning the discovery process to discuss e-discovery issues in advance. Electronic information can be produced in different kinds of formats, so if the parties discuss format requirements at the outset, it can eliminate or at least streamline disputes over those issues.

One of the challenges about e-discovery, though, is that relatively few rules were created with e-discovery in mind. Rather, the legal system is applying the old rules to new situations. The existing rules were designed to properly balance one party’s need for information with the other party’s interests in not providing the information for various reasons, including expense and confidentiality. These old rules are generally sufficient for providing this balance, but nobody anticipated the time and expense necessary to collect such a large quantity of electronic information for discovery purposes. Therefore, the legal system is still in the early stages of figuring out how the rules do and should apply.

Q: How will electronic “discovery” information be treated in the future?
A: 
That has not been determined. Some people have suggested that we revert to the “trial by ambush” that pre-dated our current rules of discovery, when parties did not have access to so much information before trial. Businesses and individuals alike also may gradually move away from creating so much electronic information as they develop a greater appreciation for the risk created by preserving every thought electronically. (At this point, though, such communication shows no signs of slowing down.)

Under the current rules, you should understand that you are probably entitled to electronic information from the other side in a legal dispute, and the other side is entitled to that information from you. If you destroy electronic information about a legal dispute, you may be violating the law. Just as you cannot shred incriminating documents, you also cannot delete incriminating emails once you know there is a dispute. To protect yourself, it is advisable to create fewer emails and other electronic information, and when you do create electronic information, give it the care you would give a letter and the sensitivity you would use in personal conversation.

11/29/2013

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by attorney Bill Nolan of the Columbus office of Barnes & Thornburg LLP.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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