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What is e-discovery?

Electronic discovery (e-discovery) refers to how electronic data is requested, located, acquired and then searched in the course of litigation. Discovery (e-discovery without the “e”) simply means the exchange of certain information and documents of all forms in the course of a case. Rules of many courts provide for various types of written discovery, such as interrogatories (written questions to be answered under oath), requests for production of documents, and requests for admission of fact or genuineness of documents.

What are the types of electronic data that may be part of e-discovery?

The types of data, also known as electronically stored information (“ESI”), may range from data stored on computers (laptops and desktops) to cell phones and personal mobile devices (such as Blackberries, iPhones). This data may include, for example, electronic mail documents and files of all types, online documents and files of all types, audio files, photographs, etc.

What is a “legal hold” or “litigation hold”?

A “legal hold,” also known as a “litigation hold,” is a time frame during which parties to litigation preserve and store potentially relevant information, as well as suspend any document destruction policy (formal or informal) they follow for both hard copy and electronic documents.

When should a “legal hold” or “litigation hold” commence?

A “legal hold” or “litigation hold” should commence whenever litigation is reasonably anticipated, threatened or pending against a party.

Who is responsible for e-discovery compliance?

A client and the client’s counsel typically share the e-discovery compliance responsibility for the litigation matter.

Is e-discovery expensive?

E-discovery can be very expensive, particularly if a client is subject to providing e-discovery and has not earlier implemented and consistently followed a document retention and destruction policy. E-discovery also can be very expensive if the process is not facilitated with the help of professional e-discovery service providers who are well-trained and experienced in data collection, storage, searching and the like.

What may happen if e-discovery duties and responsibilities are not carried out with objective reasonableness and good faith?

Sanctions, including those as serious as judgment/default judgment and substantial attorney fee awards, may be imposed against parties to litigation.

Is electronic mail between a client and the client’s attorney protected by the attorney-client privilege from disclosure as part of e-discovery?

Not always. Clients who are not well advised on this topic are particularly at risk. If, for example, the electronic mail was exchanged via a client’s work e-mail address and/or the e-mail was copied, blind copied, or forwarded to person(s) other than the client and the client’s counsel, then the electronic mail may be discoverable because there may not have been a reasonable expectation of privacy, and/or confidentiality of the communication may be deemed to have not been maintained and therefore no longer protected by the attorney-client privilege.
 


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