Electronic Discovery Issues - Research Paper Example

Electronic Discovery Issues The term electronic discovery (e-discovery) is taken to mean the unearthing of all information that is electronically stored, and this information is that which is contained in email messages, instant messages, voicemails and cell phones. Information in websites, call logs, databases, word processing documents among many others that are found in the application systems of electronic devices add up to the list too (Duizend, 37). This is, in addition to the backup and archived copies of the same such as CD drives, floppy disks flash disks, magnetic tapes, zip drives among many others. However, the involvement of a wider array of people in e-discovery such as lawyers, IT administrators and forensic investigators has led to problems with mystifying vocabulary. It is noteworthy that issues pertaining this unearthing of electronically stored information (ESI) have grown to become typical of civil proceedings in state courts (Duizend, 38). This is because these issues continue to change the way lawyers do go about their cases as in preparation, performance and litigation. This paper delves into the world of electronic delivery by focusing on the recovery process which most of the time, but not all, is geared towards recovering of evidence to be used in court proceedings, and this is to determine its nature and extent in the society. Digital information Duizend (37) asserts that the past 15 years have seen a growth in the pervasiveness nature of ESI for business, individuals and regimes alike. It is thought that the information produced yearly gets to be stored in an electronically way than the past years with the percentage having reached ninety three, and this is, in addition to, 2.2 million emails that are being transmitted on a daily basis. This has resulted into a subsequent use of such information in litigations in which evidence forms a major part of the process. However, this change experienced in the creation and storage of documents has immensely affected the federal courts with the state courts still grappling with the issue. This is expected to continue for a couple of years ahead given the dynamism in the world digital information. This is because the revolution experienced in digital information is making available increased volumes and types of data. Therefore, lawyers have to be innovative with technology and evolve new methodologies that tag along with the wave as well as cost effective for that matter to the cost conscious clients. It is noteworthy that the tension between the clients need for confidence and predictability, and lawyer’s fear of sanctions for their flawed e-discovery process has been mentioned as one of the reasons affecting the process of decision making to effectively and quickly resolve e-discovery disputes (Lender and Peck, 6). Differences between traditional and electronic discovery There is a number differences between the traditional and e-discovery, and these are volume where the e-discovery deals with bigger volumes as compared to the traditional discovery. Another difference is the volatility of the information that is electronically stored, and this points to the computer systems that are capable of automatically recycling and using memory space, overwriting in the back ups and changing file locations among many other which alter data with no human intent (Duizend, 38). The third difference is the nature of e-data, for they contain hidden data that may be created by either the computer or people, and, even though, this information might be useful in then verification of data, it might not be accessible, thus undermining the process of litigation. Finally, the cost of retrieval of data, and, although the cost of retrieval for e-data continues to drop especially those stored in a searchable form, the evolution of storage media, programs and systems makes this process difficult and virtually impossible. Additionally, use of relevant documents especially from backup systems or even legacy systems can be very expensive (Lender and Peck, 510). E-discovery issues Even though, there has been revision of federal rules of civil procedure, it is noteworthy that electronic discovery still has new emerging issues as technology evolves with time (Grimm et al, 507). Lender and Peck put forward ten of the most key issues facing companies in the today’s world, and are determined to offer some insights and suggestions as of how address future predicaments. One of the issues is cooperation and this should be in action to lessen the associated costs (Grimm et al, 512). Therefore, the litigants must have a collaborative e-discovery to limit costs. Another issue is the proportionality where the lack of predictability in the law has resulted into unusually long time just in case of sanctions on companies (Lender and Peck, 5). This has subsequently led to use of great amounts of money to produce pages of documents when in reality the trials only need a few number of documents from the key custodians. This is an indication of something h gone wrong which needs to be fixed. When to collect is another e-discovery issue that if not done well only contributes to the increasing costs of the litigation process. This is because of the assertion by the courts that preservation calls for collection and not follow up to safeguard the potential documents that may be relevant in the litigation process. This means that involvement of litigants in the assortment of data pertaining preservation increases the costs, for many companies have been known to store more data than what they produce. This is because the process of preservation normally starts early seven before the cases are filed. Therefore, (Lender and Peck, 6) call for some exceptions especially in the case of a specific employee whose conduct is on scrutiny. A part from this is issue is the issue of search where in the past traditional discovery, litigants would review each page. However, the advent of technology has come with voluminous data that cannot be reviewed one by one, and this gave way to lawyers also using technology to review. However, this is disastrous, for in electronic data such as emails spelling mistakes ate rampant with many acronyms used making use of key words to search ineffective (Grimm et al, 512). Another issue is the Rule 502 that reduces the costs of the process by waivering some privileged documents. The concern is that whether the improvement of technology will result into reduction of costs in the production of documents. Others include the privilege and privilege logos which only seemed to work with the traditional discovery, for in the electronic discovery it is ineffective to search for such documents. This is because there might be a reprint of a document to several documents, thus, undermining the search process (Grimm et al, 510). Social networking and cloud computing are some of the other issues that compromise e-data discovery, for in as much as they are personalized, some companies do use these cites to encourage business both for employees and customers. On the other hand, sanctions work to the disadvantage of companies where the companies are expected to store a lot of data which is costly instead of going over the cases and finishing all at once with no possible future recall. Foreign discovery finish up the list as one of the e-discovery issue. This is because when information to be retrieved goes overseas it means another obstacle where there exist different rules and statutes involving data retrieval and this impact the process a lot (Lender, 6). This is indeed a problem for not only me, but every individual. This is because of the wave of technology that has hit the world, and it is time that people learn to go along with changes. My community is affected to a great extent given the crimes that often characterize it in a number of ways. First of all, the community is not that well equipped to the new dimensions to be aware of the current legal process, and further more its complexities which I guess is born out of ignorance. Therefore, as a people they rely on evidence that is characterized by physical presence of witnesses in favor or against the accused offender. Therefore, if this trend is not to change in the near future where people chose to stick to the past, they will incur a lot of damages, for the current e-discovery has consequences of witness exclusion (Schneider, 20). For instance, it is disturbing to have a person being convicted of an offence just because of a text message for which one is sure not to have sent, but just used by someone to frame him. The community will off course have a difficult time attesting to that which could be otherwise if witnesses were involved. This is because in as much as digital evidence is important, the community would want to be involved in the process too given the slow adoption of the process as well as many shortcomings that characterize e-discovery (Schneider, 12). Solution to the problem Research by (Delloite) asserts that better communication is a crucial way of mitigating the risks associated with e-discovery. This is because improvement of understanding among all the relevant participants will be important in controlling the costs and managing the risks. This is because the differences above especially those regarding the e-discovery are to blame for the issues experienced in the judicial system (Duizend, 38). In the search fir a solution to the e-discovery issues, it has been established that there are three interrelated challenges that need to be dealt with in achieving a common ground (iXPcorp.com, 1). These are communication awareness and readiness. The communication hurdles are moistly evident between the legal and IT, and the two entities have to work together, for they depend on each other for excellent coordination. Awareness is another solution to the issues of e-discovery. This is because its lack is a sure cause for low prioritization of preparation for litigation issues given the challenges that e-discovery posits. Readiness is another challenge, which if addressed well can lead to resolution of many issues that come with e-discovery (Deloitte). However, the e-discovery still remains an issue, for many people lack the resources and the sophistication that is required to effectively manage e-discovery. Some of these resources are funds, handling of voluminous data and the complexity of data privacy as well as data’s security arrangements (EDRM.net). Additional research carried out by Delloite on company employees show that only 62 percent of respondents approve of their company’s concern about the challenges of discovery that are posed by social media websites as compared to only eight percent that approved of their company’s preparedness. This is in addition to, 25 percent who said their company was unprepared (Dertouzas et al, 7). It is, thus important for everyone to be ready, aware and communicate freely in this digital world to ensure a smooth litigation process. This is because communication in the last ten years has grown to become predominantly electronic, and everyone has a duty to preserve relevant communication (Shnnneider et al, 1). This is, in addition to, the fact that law is still adapting to meet this reality brought about by the electronic communication, in addition to the high costs associated with retrieval of data for a society that is not well financially. Another importance is that digital information has come with voluminous data that requires a sound technology to manage it, and the fact that exposure is high means that obligations must be managed effectively (Reynolds, 20). Conclusion The advent of Technology is indeed a god thing, but also a bad one given its shortcomings that come as a result of its dynamism. These issuers affect everyone direct from the lawyers, IT experts and forensic experts. It is important that the community be enlightened through good communication that creates awareness and readiness for the new dimensions. This will go to a great extent in taming the issues that are related to e-discovery and use it to man’s advantage in combating crime. Works cited Duizend Richard. Electronic discovery. A closer look at technology. 2007 pp 37-39. Retrieved on 3rd May 2012 from http://www.ncsconline.org/WC/Publications/Trends/2007/ElDiscTrends2007.pdf. Schneider, Richard, Willoughby Dan and Harman Matthew. Key issues in electronic discovery. Tuesday, July 19, 2005. 12.30 TO 1.30p.m. EDT. PP 1-34.Print. Deloitte. E-Discovery: Mitigating risk through better communication.2012. Retrieved on 3rd May 2012 from http://www.kslaw.com/imageserver/KSPublic/library/event/agenda/ediscovery0705.pdf Lender, David and Peck Andrew.10 Key E-Discovery issues in 2011: Expert Insight to manage Successfully. The Metropolitan Corporate Counsel. 2004. Vol. 19, No. 4. Print. Grimm Paul, Fax Charles, Sandler Paul and American Bar Association. Discovery Problems and Their Solutions. American Bar Association, 2009.Print.510 Reynolds George. Ethics in Information Technology. New York, Cengage Learning, 2011. Print. 159. Volonino Linda and Redpath Ian. E-Discovery for Dummies. New York, John Wiley & Sons, 2009. Print. 20 EDRM.net. Electronic Discovery Reference Model.2011. Retrieved on 3rd May 2012 from iXPcorp.com. Information Governance and e-Discovery Readiness Program for Colleges and Universities Retrieved on 3rd May 2012 from http://www.ixpcorp.com/news/docs/iXP_Information_Governance_Services_University.pdf Dertouzas James, Pace Nicholas and Anderson Robert. The Legal and Economic Implications of Electronic Discovery: Options for Future Research. New Jersey and Corporation, 2008. Print 7. Read More