e-Discovery 101 for the In-House Attorney

By Neetal Parekh on August 25, 2009 | Last updated on March 21, 2019

From the halls of software companies and the conference rooms of legal technology firms, e-Discovery is coming in-house.  The American Bar Association (ABA) reports on the recent trend of big companies to develop e-discovery resources within their own legal departments rather than passing the baton to outside counsel.

Perhaps it is a sign of the economy or the desire to get more bang for the company's proverbial buck, but the move indoors can leave an in-house counsel wondering...what exactly is e-Discovery again?

Here is a primer on the practice, and what you need to sound coherent in discussing the ins and outs of e-Discovery.

  • What is e-Discovery?

In a nutshell, e-Discovery is how electronic data is requested, located, acquired, and then searched in the course of civil or criminal litigation.  E-discovery covers a broad range of data including audio files, photographs, animation, software, email, and online documents. 

  • What Makes e-Discovery different?

What makes it all the more fascinating (as compared to regular discovery) is the nature of the data being discovered.  Electronic data is extremely searchable, rich with useful hidden data (metadata), and often ridiculously difficult to completely delete. 

Metadata is basically data about the data itself.  It contains easy things like time an email was written, the IP address it was sent from, and when a document was last edited.  However, it can also show past changes to a file, who has worked on a document, and comments that were added during the editing process--even if removed afterwards.  Metadata software can allow access to some of these advanced functions of hidden data, which the user likely did not realize could be accessed later.  Exposure of metadata could be of huge concern to legal departments in the course of matters such contract negotiations, intellectual property litigation, and employment lawsuits.

  • How do the Federal Rules of Civil Procedure (FRCP) Apply to e-Discovery?

To get a broad understanding of this, you should really meet the Wizard. 

FindLaw's Electronic Discovery Rule Wizard will walk you right from Rule 16(B) and 26(F) -the Meet and Confer Rules, to the Duty of Disclosure, Privilege Claims, Forms of Production, and all the way to to Rule 37--Safe Harbor.  You can read the text of each rule, catch the summary, and pull up a handy checklist of how to comply and implement in the course of actual e-Discovery proceedings.

  • What Should In-House Counsel Know about e-Discovery software?

Considering the ease of organizing and searching electronic data, it is no wonder that there are many options for e-Discovery software.  The software your company ultimately decides will depend on the company's size, the types of data that will be captured or turned over, and how the company plans to store, search, and use the data.   You can find out about a few options in the FindLaw's E-Discovery Software section.

  •  Great, Where Do I Go to Find Out More?

If reading this has made you a-dizzy for e-discovery, there are plenty of resources to find out more.  Here are a few of our top picks:

Interactive Guide to Electronic Discovery

FYI: Electronic Discovery

Electronic Discovery from the Department of Labor

And if you long to read about e-Discovery offline,  you can look into ordering your free copy of eDiscovery for Dummies.  

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