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E-Discovery (electronic 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. 



Electronic data is extremely searchable, rich with useful hidden data (metadata), and is often challenging to completely delete. Metadata is information about the data itself.[1] contains easily ascertainable attributes such as the time an email was written, the IP address it was sent from, and when a document was last edited. However, metadata can also show past changes to a file, users who have 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 can be an overarching concern to legal departments in the course of matters such contract negotiations, intellectual property litigation, and employment lawsuits.

Federal Rules of Civil Procedure and e-Discovery

The Federal Rules of Civil Procedure (FRCP) apply to e-Discovery. Common FRCP rules such as Rule 16B and 26(F)--the Meet and Confer Rule, Duty of Disclosure, Privilege Claims, Forms of Production, Rule 37--Safe Harbor are FRCP Rules that also apply to e-Discovery.

State E-Discovery

E-Discovery is not wholly a federal courts phenomena however.  Over half the states in the U.S. have adopted e-discovery procedures for state court cases.[2]  California is one such state with adoption of its Electronic Discovery Act.[3]  In this Act, a party will not be sanctioned by the courts if they are unable to produce electronically stored information that has been lost, damanaged, altered or overwritten, if such action occured as a result of routine, good faith operation of the electronic system holding such information.[4] 

E-Discovery Software

Considering the ease of organizing and searching electronic data, many firms opt for software to collect, sift through, and organize e-Discovery data. it is no wonder that there are many options for e-Discovery software.[5]  The Federal Rules of Civil Procedure specify rules for discovery and E-Discovery. Other major topics in E-Discovery include legal holds and Sedona Conference.


  1. [http://www.llrx.com/features/metadata.htm
  2. http://blogs.findlaw.com/technologist/2009/09/states-embrace-electronic-discovery.html
  3. http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0001-0050/ab_5_bill_20090629_chaptered.pdf
  4. http://blogs.findlaw.com/technologist/2009/07/e-discovery-california-gets-into-the-act.html
  5. http://blogs.findlaw.com/technologist/2009/09/top-5-latest-ediscovery-developments.html

External Links

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