On September 1, 2012, Florida’s new electronic discovery rules went into effect. The purpose of this article is to provide professionals unfamiliar with eDiscovery with a basic understanding of Brave New World concepts, terms, and applications. The breadth and scope require that we approach this in two parts; The first part will provide you with a basic understanding of e-discovery, the key terminology used, and will examine some of the technologies that affect this field. The second part will explore technology in more detail, address technology advocacy, and conclude with how all of this affects you as a professional.
YOU CAN DO IT!
The discovery is not new to lawyers; he has been doing it for years and has developed a level of comfort with the procedures and applicable case law. Like me, you also keep abreast of the latest developments in the law and warn your clients early in litigation that there will be investigations to investigate the facts of claims and assertions, including affidavits and document requests. , and that they should not crush or destroy these materials. You probably also communicate with your clients via email, exchange draft documents that way, and have even started scanning documents and storing them electronically in your own office. Also, like me, you’ve probably discovered that you can do all of this from a multitude of devices and devices from just about anywhere. Well, our customers have been doing it too, and you’re already equipped with eDiscovery capabilities and probably don’t realize it.
Electronic discovery is not new either; has been an integral part of civil cases in our federal courts for several years. There is also a growing body of federal case law addressing electronic discovery, some of which you can rely on in the coming years as Florida develops its own body of law on the subject. However, it is important to note that the new Florida state court Electronic Discovery Rules are slightly different from the federal Rules, so the federal cases you cite should apply to the same concepts contained in the new Electronic Discovery Rules. Florida. With the new Rules, you are likely to see CLE, seminars, and White Papers on these differences, but the two general ones are that the new Florida Rules do not have a mandatory “meet and consult” requirement and lack the penalty components of the Federal law. Rules.
In its simplest form, e-discovery simply accumulates and produces the electronically stored information that your customers used to keep on paper. It will not obviate the discovery on paper; it just complements it. Depending on how much you make and how much you want to invest, your production method can range from simply emailing data to saving data and documents, to some portable media like a CD or USB stick, to software of varying sophistication and cost. Whichever method you employ, the fundamental purpose remains the same as with discovery on paper; the production of non-privileged or protected receptive materials.
TERMINOLOGY
It helps to understand some of the most common and important terms used in e-discovery:
- ESI (Electronically Stored Information): This is the data. Think of it like the old stack of papers you used to sift through to produce responsive documents.
- EDRM (Electronic Discovery Reference Model): The electronic discovery process that basically consists of collecting and preserving data, processing it, reviewing it, and finally producing it.
- De-Duping/De-Duplication: the process of identifying and segregating true duplicates
- De-Nisting: removing system files and applications from ESI
- Filtering: Refine a search for data or a subsequent search
- Hash value: Like a VIN number for a car, the unique “fingerprint” assigned to each file
- Keywords: identified/shortlisted words used to search for ESI in the review process
- Metadata: Information about the data, for example, who created it, edited it, when, on which computer, etc.
- Native Format – The original format for data, such as MS Word, which can then be converted to another format for production, such as pdf or tiff, if applicable.
- PST – the file where emails are stored
- Preservation: keeping the original data in an altered state
- Dispossession: The loss or destruction, whether inadvertent or intentional, of data that will challenge our judges to craft an appropriate remedy and keep our appellate courts busy for years to come.
TECHNOLOGY
The pace of technological developments in recent years is nothing short of astounding. While checking emails on my tablet on a boat in the Bahamas not long ago, my twelve-year-old nephew commented that he understood that email was something older people use to send documents back and forth. Email really only came into common use during his lifetime, but recent years have seen an explosion of social media and a rise in other forms of electronic communication, like text messaging. All of this technology is producing and creating data that can be a potential gold mine in any litigation and can dynamically alter the course and outcome of a lawsuit.
Whether you are a natural do-it-yourselfer or prefer to hire an outside expert or whatever your particular customer and case may be, there is a wealth of technology out there that is growing and expanding at an exponential rate to help you. To find the right fit, you’ll need to do some research, just like when you selected your computer or phone. Organizations such as the Association of Certified eDiscovery Specialists have compiled a substantial amount of useful and timely information about software, vendors, and case law. There are also several conventions where these providers meet, such as the annual ACEDS Conference in Ft. Lauderdale.
In part two, we’ll explore the technology in greater detail and its defense, as well as how all of this will now affect your practice.
