TL;DR
What is eDiscovery? eDiscovery, or electronic discovery, is the process of identifying, preserving, collecting, processing, reviewing, and producing electronically stored information for litigation and other legal matters. For litigators, confidence comes from addressing eDiscovery early, understanding preservation obligations, prioritizing data sources and custodians, making informed scope decisions, and establishing an ESI protocol and production format before discovery is underway.
Digital evidence can quickly become one of the more complex parts of litigation. Relevant information may be scattered across email accounts, mobile devices, cloud storage, messaging platforms, databases, and business applications, creating questions about what exists, what should be preserved, and how that information can be efficiently reviewed.
For attorneys, managing these issues does not require becoming a technology specialist. It does require recognizing the eDiscovery decisions that can affect cost, risk, deadlines, and the usefulness of evidence. Addressing those decisions early and beginning with the end in mind can make the process considerably more manageable.
What Is eDiscovery and How Does the Process Work
eDiscovery is short for electronic discovery. It refers to the discovery of electronically stored information, commonly called ESI, in litigation and other legal proceedings.
Electronically stored information can include emails, documents, spreadsheets, text messages, collaboration and messaging app content, mobile device data, cloud and SaaS data, databases, audio and video, and information maintained in specialized business systems.
A straightforward answer to the question “What is eDiscovery in law?” is that it applies the discovery process to information created or stored electronically. One of many possible eDiscovery examples is a commercial dispute in which relevant communications are distributed across employee email accounts, Microsoft Teams or Slack messages, smartphones, and cloud storage.
The Electronic Discovery Reference Model (‘EDRM’) provides a widely recognized framework for understanding the eDiscovery stages. The current EDRM 2.0 model includes information governance, identification, preservation, collection, processing, review, analysis, production, presentation, and disposition, with identification, preservation, collection, and processing grouped within a broader Data Acquisition framework. These stages help explain the eDiscovery process, although they do not necessarily occur in a rigid sequence. Teams may revisit earlier decisions as they learn more about the matter and available evidence.
For attorneys learning about eDiscovery, the important point is that technology is only one part of the process. Effective eDiscovery also depends on sound decisions about preservation, scope, custodians, data sources, review, and production.
1. Address eDiscovery Early
One of the most useful ways to reduce uncertainty around eDiscovery is to consider it near the beginning of a matter. Waiting can create unanswered questions about where relevant ESI resides, whether it remains available, what it may cost to collect and review, and how it should ultimately be produced.
One helpful approach is to consider the desired outcome from the outset. Instead of viewing every source of digital information as equally important, litigation teams can consider what information may ultimately be responsive to the issues at hand, and how it could support case analysis, depositions, negotiations, or trial preparation.
Technology can support this work. What is eDiscovery software? Broadly, it is technology used to help legal teams collect, process, search, review, organize, analyze, and produce electronic information. Modern eDiscovery tools can make large data sets more manageable, while experienced litigation support professionals help teams apply those capabilities to the needs of a particular matter.
2. Understand Preservation Versus Production
One of the most important distinctions in eDiscovery is preservation vs production. Preserving potentially relevant information and ultimately collecting, reviewing, and producing information are separate considerations.
Data preservation generally focuses on preventing potentially relevant information from being lost or altered after a preservation obligation arises. A legal hold is one mechanism organizations may use to communicate preservation requirements to appropriate custodians and stakeholders.
Litigators should be cautious about agreeing too early to exclude entire categories of information from preservation simply because those sources appear difficult, expensive, or less accessible. Information that is not ultimately collected or produced may still raise preservation considerations.
Similar caution is appropriate when discussing broad waivers of eDiscovery data sources. Understanding the producing party’s applicable retention policies can provide important context about what information may exist, where it resides, and whether routine deletion practices could affect its availability.
3. Identify and Prioritize Data Sources and Custodians
Today’s data landscape extends far beyond email and office documents. Potential sources can include laptops, smartphones, messaging and collaboration applications, cloud storage, SaaS platforms, shared drives, databases, and specialized business systems.
Not every source or custodian necessarily requires equal attention at the same time. Prioritization can help focus discovery first on the people and systems most likely to contain useful information.
For example, a matter involving many custodians may initially focus discovery efforts on a smaller group of priority custodians. What the legal team learns from that information can then inform decisions about additional custodians, devices, or systems.
This type of sequencing can help control cost and complexity without prematurely assuming that potentially relevant sources should be permanently excluded.
4. Manage Scope Without Creating Blind Spots
The volume of ESI can significantly affect the costs of processing, hosting, document review, privilege review, and production of discovery material. A focused scope can therefore make discovery more manageable for everyone involved.
But narrowing discovery is different from agreeing that an entire source can be disregarded. Legal teams benefit from understanding what data exists before making significant decisions about exclusions.
This is also where experienced litigation support and eDiscovery software for law firms can add value. Combining practical discovery expertise with appropriate technology can help teams evaluate data volumes and workflows while keeping discovery aligned with the needs of the matter.
Early identification also gives attorneys better information for discussing proportionality and scope without unnecessarily limiting access to potentially useful evidence.
5. Negotiate the Production Format Early
Production format can have a significant effect on how efficiently a receiving legal team can search, review, organize, and use discovery. An ESI protocol can address these issues before large volumes of information begin changing hands.
Depending on the matter and agreed specifications, production may involve native files, TIFF images, PDFs, extracted text, metadata, and load files used to transfer information into a review platform. These distinctions have practical consequences. A PDF production without useful text or metadata creates a different review experience from a properly structured TIFF production accompanied by appropriate extracted text and load files, or a native production where appropriate.
Production requirements should reflect how the litigation team expects to review and use the information. Discussing those requirements early can reduce avoidable rework and help ensure incoming discovery is usable in platforms such as Relativity or Everaw.
For teams researching Relativity eDiscovery or other discovery technology, the larger consideration should remain the workflow and litigation objectives rather than the software alone.
Build Confidence in Your eDiscovery Strategy
Understanding eDiscovery does not mean mastering every technical detail. For litigators, confidence comes from recognizing the decisions that can affect preservation, scope, cost, review, and the usability of electronic evidence, then addressing those issues before they become unnecessary obstacles.
Complete Legal supports law firms, corporate legal departments, and litigation teams with eDiscovery consulting, forensic data collection, processing, secure litigation hosting, managed review, and discovery workflow support. Our team works alongside clients to help make complex ESI issues more manageable while allowing attorneys to remain focused on case strategy.
Connect with Complete Legal today to take the next step.
📧 info@completelegal.us | 📞 888-885-9909
Key Takeaways
- eDiscovery applies the discovery process to electronically stored information.
- The EDRM provides a useful framework for understanding the major eDiscovery stages.
- Addressing eDiscovery early helps litigation teams begin with the end in mind.
- Preservation and production are separate considerations that require informed decisions.
- Prioritizing custodians and data sources can help control discovery cost and complexity.
- An ESI protocol should address production format early so electronic evidence is delivered in a useful form.
