Ten Things You Should Know About Document Discovery

In the U.S., document discovery in litigation has its own practices. Efficient document discovery can save large sums of litigation costs. Even in other countries, efficient document “discovery” can substantially enhance the chances of success in lawsuits. If you cannot locate critical documents that support your arguments, you could lose genuine claims in a court of law.

1. Document discovery means retrieving and producing documents that substantiate your claims, whether in the context of a lawsuit or a compliance audit. In today’s context, over 90 per cent of discoveries are electronic discoveries, i.e. discovering documents stored in an electronic form.

2. If electronic document management systems are good, document discovery is far easier than the physical discovery of paper documents from the mass of papers, files and filing cabinets. However, proving the authenticity of electronic documents can face some special problems.

3. Just opening an electronic document can change the metadata associated with the document, with the user not even being aware that it has changed. Metadata can sometimes prove critical for supporting the claim being made. The substantial content of electronic documents is also quite easy to change, making them suspect as authentic evidence.

4. The metadata attached to electronic documents, such as the automatically recorded “date of modification” and the person who created it can help prove specific points. Electronic documents are often required in their “native file” state to access such metadata.

5. Electronic repositories are often cleared automatically of old files to make space for new documents. Volumes of electronic documents such as e-mails and saved chat messages can mount to huge quantities if such periodic clearing is not done. This can sometimes mean losing valuable documents that substantiate legal claims.

6. Regulations like Sarbanes Oxley Act have made it a serious offence to destroy electronic records once litigation has commenced, or even if one is suspected. A “legal hold” is placed on all documents, including e-mails, once such an event occurs. The inability to produce all relevant documents can also lead to adverse judgments against the defaulter.

7. Producing electronic documents in their native format is not always required. Instead, they can be printed out or converted into such formats as a PDF document before being produced. It is acceptability of the document to the litigants that is important. For example, converting a computational spreadsheet into PDF can lose all the computational details, and might affect the document’s value as evidence.

8. Electronic documents can exist in several versions and copies, possibly stored in different places such as local workstation computers, network servers, laptops and even home computers of employees. The document management system has to exercise tight control in such a situation to ensure that the legal admissibility of the documents is not affected.

9. Document management systems restrict access to documents, make unauthorized changes difficult, maintain audit trails of all actions done on each document and exercise strict version control that authenticity of electronic documents is preserved.

10. Where documents exist only in backup or archive media that are not on-line, their discovery can prove expensive and burdensome. In such cases, the parties might agree on sharing the costs of discovery if the documents are classified as “inaccessible” by law.

Electronic discovery, while theoretically easier, faces several problems that affect their acceptability and special training might be required to educate staff about relevant issues. There are resources like EDRM that can help with electronic discovery issues.