Basics of E-Discovery for Small Businesses

Electronic discovery, or “e-discovery,” is an increasingly important aspect of business litigation. Prior to the advent of the digital age, discovery consisted of physical documents being requested, collected, reviewed, and then potentially used in a litigation dispute. 

Given the rise of information technology, and especially electronic file storage and cloud backup, physical documents often comprise a minor portion of relevant documents in a company’s possession.  Litigants need to obtain documents which have been electronically communicated and stored.

E-discovery is a fascinating area, one which continues to evolve rapidly with the fast pace of technological change and development. In this post, we’re going to provide an overview of e-discovery so that business owners have a basic understanding of this process and some of the issues involved. 

A Few Pieces of Terminology

The first piece of terminology to know is the term “ESI,” which stands for “electronically stored information.” This term is seen often in the context of e-discovery.

Another term to know is “native file,” which refers to the original format of a given piece of ESI. If a document’s original format is Microsoft Word, then that is its native file.

Another term is “OCR Text,” which stands for Optical Character Recognition. OCR is a software which can scan a document and make the text easily searchable; this helps a great deal in the review process of vast amounts of ESI.    

Overview of E-Discovery 

Discovery is the process by which litigants can gather information for the purpose of substantiating their claims and defenses in litigation.  E-discovery, therefore, is simply the same process, but the information being gathered is digitally stored.

Discovery takes place according to established rules set by the court. If litigants seek information being held by the opposing party, they need to make a formal request and specify that they are seeking the production of specific categories of ESI.  

When the information is digitally stored, they may request a copy of a server, a computer hard drive, or certain software programs. Because discovery should be narrowly tailored to obtain relevant materials, parties will oftentimes coordinate search terms and keywords to filter the voluminous data on servers, hard drives, or other storage systems.  

After the digital information is obtained, it is copied and then turned back over to the original owner. Because e-discovery often requires certain kinds of technical expertise, the process is typically aided by information technology professionals.  

Early Disputes Involving Electronically Stored Information (ESI) 

E-discovery is becoming more and more ingrained within the fabric of Florida law. This is reflected in the fact that the Florida Rules of Civil Procedure were amended in 2012 to specifically include e-discovery guidelines. Part of the impetus behind these changes was due to e-discovery disputes without significant authority.  One of the main sources of dispute arose from litigants who sought computer hardware which, in addition to containing the desired material, contained confidential material unrelated to the lawsuit at hand.

After weighing the competing interests involved, Florida courts allowed parties to have access to hardware which may also have confidential information; however, the courts require that steps be taken to eliminate the possibility of the confidential information from being accessed.  

Additionally, because of the time and expertise needed, cases that involve significant e-discovery can get very expensive.  To lessen these burdens, the e-discovery rules and body of case law provide for the shifting of e-discovery costs in certain situations.   

Business litigation cases involving e-discovery and complex e-discovery disputes are becoming more common.  It is essential for Florida business owners to engage seasoned business litigation attorneys with experience navigating e-discovery matters to ensure that their company’s confidential and proprietary data and information are protected.    

Contact The Frazer Firm for More Information 

For more information, reach out to the experienced business attorneys at The Frazer Firm today.