Electronic discovery, or e-discovery, describes the retrieval of evidence that is stored electronically, for use in a legal case. It’s used to source, manage, and secure documents to ensure that they are correctly archived.
Typically, electronic discovery is used to find and store relevant email, voicemail, and videos. But it’s used to obtain social media messages, or copies of entire databases, if they are required as evidence. Even a simple Facebook status can be used as evidence in court.
Electronic discovery differs from the process of retrieving ordinary documents for lawsuits, because legal teams have to overcome some unique challenges:
Data is stored in huge volumes, so the data extraction process can take a long time.
Archives may not be well organized, so de-duplication may be required to ensure that only one copy of each relevant document is presented.
Electronic documents contain important metadata, such as times or locations, which need to be extracted and preserved in their original state.
All documents have to be stored securely, so they can be reviewed by legal teams without the possibility that they will be tampered with.
Important Principles in Electronic Discovery
The authenticity of information is verified by the chain of custody. This is essentially an audit trail that notes how the evidence was stored, transmitted, and handled. The person who originally held the file is called the custodian.
Once the relevant documents are identified, they are placed in a special hold status so that they cannot be changed or deleted. Each document is given a unique hash. Non-essential data is skimmed out, and the documents may be converted to an easily accessible, image-based format, such as a PDF.
Documents are then stored in a secure database for legal professionals to review. The package of documents is called a load file.
Systems are also capable of determining which documents are generated automatically, and which are created by a human, in an effort to filter out information that is unlikely to be relevant.
This automated process is called deNISTing. It is named after the National Institute of Standards and Technology.
Electronic Discovery Law, State By State
From state to state, electronic discovery rules vary.
A majority of states base their electronic discovery rules on the Federal Rules of Civil Procedure, which govern many aspects of the civil legal process.
However, not all states recognize these rules for electronic discovery. A small number have no established rules at all.
Alabama formally recognized electronic discovery in February 2010. It has different interpretations of some rules, and specifies that business should not shorten the retention period of documents without “legitimate business purpose.”
Alaska state law was amended by its Supreme Court in April 2009 to update its iadoption of electronic discovery rules. It has special rules, including rule 26.1 which covers divorce litigation.
Arizona doesn’t follow the Federal Rules of Civil Procedure. It has its own rules, which are similar. They were first brought into state law by its Supreme Court in January 2008.
New Arizona E-Discovery Rules (PDF): a document released just after the rules were first rolled out, explaining the differences between Arizona’s rules and Federal rules.
The Supreme Court of Arkansas adopted two rules, 26 and 26.1, in September 2009.
The Civil Discovery Act sets out the rules for electronic discovery in California. Rules were introduced in 2009, and expanded in 2013.
E-Discovery Pocket Guide: originally published in 2008; a good, basic overview
Code of Civil Procedure: specifically section 2016.010-2016.070.
Colorado has rejected proposals to include electronic discovery rules in its own state law. In 2014, it issued a set of guidelines, which are linked below.
Connecticut first implemented electronic discovery rules in January 2012. The rules are detailed in Section 13 of its Practice Book, linked below.
Delaware introduced electronic discovery rules 7 years after the Federal Rules were brought in, but has few variations.
Florida made its first forays into electronic discovery in 2010, adding additional rules in 2012.
Georgia is one of the states with no electronic discovery rules or guidelines. The link below offers some general good practice advice.
Hawaii has reviewed and updated its electronic discovery rules several times. The latest versions are available in the Hawaii Rules of Civil Procedure, linked below.
Hawaii Rules of Civil Procedure: contains electronic discovery information.
Idaho has broken away from Federal Rules. Instead, it has developed its own rules for civil and family law cases, similar to the way Texas has.
Illinois’ Supreme Court Rules were introduced in 2014 to streamline electronic discovery. Its courts introduced amendments to three existing rules, based on the principles of the Federal Rules.
Indiana was a relatively early adopter of electronic discovery law. It brought in amendments in January 2008, less than two years after the Federal Rules were updated.
Iowa incorporated electronic discovery rules into its Civil Procedure in May 2008. Some rules are worded differently to the Federal Rules, but serve the same purpose.
Kansas’ take on electronic discovery mirrors Federal Rules. The link below offers compliance guidance.
Kentucky has not adopted any Federal Rules, nor has it adopted any of its own.
Louisiana has followed the basic shape of the Federal Rules in its Code of Civil Procedure.
Maine’s electronic discovery rules do not stray far from the Federal Rules. It has five rules specifically to deal with e-discovery, which were brought into law in August 2008.
Maryland was a relatively early adopter, bringing in electronic discovery rules from January 2008. They are similar to Federal Rules.
Massachusetts has adopted five rules pertaining to electronic discovery, as of January 2014.
Michigan adopted electronic discovery rules in January 2009. Most of them track the Federal Rules.
Minnesota’s rules follow Federal Rules, with some augmentation.
Mississippi’s rules are separate from the Federal Rules. Like Texas, it formulated its own version, independent of all others.
So far, Missouri has not adopted any electronic discovery rules.
Montana is one of many states that adopted the Federal Rules with some amendments.
Nebraska brought electronic discovery rules into law in June 2008 by amending existing rules.
The courts in Nevada have not adopted any special rules for electronic discovery.
The New Hampshire courts have only adopted one electronic discovery rule from the Federal Rules, the ‘meet and confer’ rule.
New Jersey has not adopted the ‘meet and confer’ rule, but has adopted the other Federal Rules.
Broadly speaking, the New Mexico electronic discovery rules follow Federal Rules, with some minor amendments.
The New York State Unified Court System recommended changes to discovery rules in February 2010.
North Carolina introduced its electronic discovery bill in 2011, and these rules were adopted in October the same year.
North Dakota’s electronic discovery rules are practically identical to the Federal Rules.
Ohio adopted the Federal Rules with some amendments. Electronic discovery has been part of the law since October 2008.
Oklahoma’s discovery rules were expanded in November 2010 to incorporate rules on eletronic discovery.
Oregon currently has no rules specifically aimed at tackling electronic discovery.
Pennsylvania previously used an Order Governing Electronic Discovery to appoint a mediator in difficult cases. As of 2012, it has now replicated many aspects of the Federal Rules in its own.
Rhode Island does not have any specific electronic discovery rules.
South Carolina amended its rules in 2011 to cover electronic discovery. The five adopted rules are very similar to the Federal Rules.
South Dakota has no electronic discovery rules.
Tennessee brought in electronic discovery laws in January 2009. It covers the subject in 12 of its civil rules.
Texas was one of the first states to make a provision for electronic discovery in its rules. It first introduced its rules in 1999, a full 7 years ahead of the Federal Rules.
Utah first adopted the Federal Rules in 2007, and has since amended them further. The amendments came into law in January 2011.
Vermont’s electronic discovery rules do not differ much from the Federal Rules. It’s still wise to review its Rules of Civil Procedure to check out the differences.
Virginia has rolled out six relevant amendments in its Supreme Court rules. These do not stray far from the Federal Rules.
Washington State updated its Civil Court Rules twice in 2010 to incorporate electronic discovery amendments.
West Virginia has not yet updated its rules to cover electronic discovery.
Wisconsin rolled out electronic discovery amendments in January 2011. There are currently no major differences between Federal Rules and Wisconsin rules.
The Wyoming electronic discovery rules are practically identical to the Federal Rules, with some minor differences in wording and numbering.
Federal Rules of Civil Procedure: from Cornell University Law School
The Basics of E-Discovery: web-based guide, with PDF download option
Further Reading and Resources
We have more guides, tutorials, and infographics related to privacy and the law:
The Ugly Face of Online Fraud: this extensive guide explains the most popular scams on the internet.
Parents Guide to Internet Safety: learn how to product your children when they are on the internet.
Dealing with Hate Crime: learn all about hate crime and what you can do to stop it.
The World Wide Web and Internet Privacy
Check out our infographic, The World Wide Web and Internet Privacy.