What Is eDiscovery Within Legal Cases?

Evidence gathering in modern legal cases is very different to how it was 50 years ago. Much of the evidence collected nowadays is in the form of electronically stored information (ESI) ranging from group chats to digital video footage. The process of finding, reviewing, and presenting this evidence is known as ‘eDiscovery’.

Electronically stored information provides all kinds of challenges that have to be carefully considered. This post delves more into the types of ESI focused on during eDiscovery, the challenges of handling this data, and the importance of a structured eDiscovery process.

What Types of ESI are Considered in eDiscovery?

The eDiscovery phase involves looking at a range of different types of electronically stored information. This includes:

• Emails: This is one of the most common types of ESI and includes attachments.
• Text messages: These can be vital for understanding timelines and confirming actions.
• Instant messages: Tasks like Slack eDiscovery are vital to corporate cases, while WhatsApp conversations are also regularly used.
• Video files: CCTV footage, mobile videos, webinar recording or YouTube uploads may all be considered.
• Audio files: This includes voice mails, recorded calls and secret recordings.
• Digital images: Photos, screenshots and technical drawings may all contain key information.
• Social media content: Posts and replies on social media are often used as legal evidence.
• Mobile phone data: Timestamps and geodata related to call logs, browsing data and app activity can be used within eDiscovery.

There are many other potential types of data that may be considered ranging from spreadsheets to website content depending on the case.

The Challenges of eDiscovery

The amount of digital data available is constantly growing. While this provides more avenues to collect evidence, sifting through all this data isn’t easy. There is so much information to look at that small legal teams can sometimes be overwhelmed by it. Technology Assisted Review (TAR) is often necessary to sort through this data - this involves using software and AI tools to search, highlight and tag information.

Some types of ESI can contain sensitive information and this needs to also be considered when collecting and presenting it as evidence. Varying regulations may mean that certain information isn’t accessible in certain cases. Certain details like phone numbers or addresses may also have to be redacted when evidence is publicly shared. Frameworks like the EDRM model (Electronic Discovery Reference Model) are used to manage ESI carefully and compliantly - legal teams around the world are now expected to follow this.

Another challenge with eDiscovery is that digital data can be edited, deleted or even completely fabricated. It’s possible to change a document or erase a video. Meanwhile, generative AI has presented new challenges, including making it possible to create deepfake photos and videos of individuals. Fortunately, there are some laws in place to deter tampering of evidence. This includes Defensible Preservation that can result in penalties for organizations that do not preserve certain information. Unfortunately, this is not always enough to prevent deletion, so legal teams and authorities often have to act fast when requesting evidence.

Legal Technology