Electronic discovery

Electronic discovery (or e-discovery, eDiscovery) refers to discovery in civil litigation which deals with the exchange of information in electronic format (often referred to as electronically stored information or ESI). Usually (but not always) a digital forensics analysis is performed to recover evidence. A wider array of people are involved in eDiscovery (for example, forensic investigators, lawyers and IT managers) leading to problems with confusing terminology.
Data are identified as relevant by attorneys and placed on legal hold. Evidence is then extracted and analysed using digital forensic procedures, and is usually converted into PDF or TIFF form for use in court.
Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence (for example the date and time a document was written could be useful in a copyright case). The preservation of metadata from electronic documents creates special challenges to prevent spoliation. Electronic discovery was the subject of amendments to the Federal Rules of Civil Procedure (FRCP), effective December 1, 2006, as amended to December 1, 2010.
Individuals working in the field of electronic discovery commonly refer to the field as Litigation Support.


Examples of the types of data included in e-discovery are e-mail, instant messaging chats, documents, accounting databases, CAD/CAM files, Web sites, and any other electronically stored information that could be relevant evidence in a law suit. Also included in e-discovery is "raw data", which Forensic Investigators can review for hidden evidence. The original file format is known as the "native" format. Litigators may review material from e-discovery in one of several formats: printed paper, "native file,", PDF format, or as single- or multi-page TIFF images.
[edit]Electronic messages
Quite often, discovery evidence is either delayed or never produced, many times because of the inaccessibility of the data. For example, backup tapes cannot be found, or are erased and reused[citation needed].
This kind of situation reached its apex during the Zubulake v. UBS Warburg LLC lawsuit. Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS' own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation's counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS.
In 2006, the U.S. Supreme Court's amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant message chats as likely records to be archived and produced when relevant. The rapid adoption of instant messaging as a business communications medium during the period 2005-2007 has made IM as ubiquitous in the workplace as email and created the need for companies to address archiving and retrieval of IM chats to the same extent they do for email.
With electronic message archiving in place for both email and IM it becomes a fairly simple task to retrieve any email or IM chat that might be used in e-discovery. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.
Also important to complying with discovery of electronic records is the requirement that records be produced in a timely manner. The changes to the Federal Rules of Civil Procedure were the culmination of a period of debate and review that started in March 2000 when then Vice President Al Gore’s fundraising activities were being probed by the United States Department of Justice. After White House counsel Beth Norton reported that it would take up to six months to search through 625 storage tapes, efforts began to mandate timelier discovery of electronic records.