E-Discovery: Evidence in Virtual Litigation
The legal field has seen a lot of changes in recent years. Technology has advanced faster than ever before, and as it has become such a major part of our society, it has become an important part of litigation. That has complicated many traditional aspects of court proceedings and introduced new concepts that are both difficult to understand at first and a bit of a “Wild West” in terms of how those concepts are used.
One of these concepts is E-Discovery.
E-Discovery is a unique form of evidence procurement, and it poses some benefits and complications for the legal field.
If you’re going into court, or you’re a member of a legal team preparing to defend a client or prosecute a defendant, it’s important that you familiarize yourself with E-Discovery as soon as possible. As the world continues to advance the digital space, E-Discovery is working its way into the vast majority of cases.
Today, we’re going to talk about what E-Discovery is, go over different forms of evidence that fall under that umbrella, discuss how it’s used, provide you with examples, and discuss some of the benefits and complications it causes.
Let’s get started.
What is E-Discovery?
E-Discovery is a term used in the legal field that simply means finding evidence in the digital realm. Instead of sending investigators to crime scenes, the homes of suspects, and other physical places to find tangible evidence, investigators scour emails and other digital forms of media to find evidence that is relevant to the case they’re working on, and they present that to the court.
At first glance, this doesn’t seem to be a major change. However, it is difficult to regulate, ethics can come into question, and a variety of other problems are present when dealing with E-Discovery. This is normal, and it’s sure to work itself out over the years just like most changes that affect the legal field have, but it does take time.
Overall, E-Discovery isn’t too different from the basic concept of gathering evidence. It’s the finer details that create key differences in how it is gathered, used, and viewed by professionals in the legal field.
Why is E-Discovery Important in 2023?
Getting evidence from digital sources isn’t a new concept. Since computers entered households and the internet became a big part of everyday life, digital evidence has been brought to the courtroom. However, it is fairly different now.
Digital activities are a part of practically everything. From our finances to our shopping habits, and much of our social lives and entertainment habits, the digital world is just as big a part of everyone’s real life as breathing or going to the grocery store because of how far technology has advanced.
This has made E-Discovery even more crucial. Instead of only being used in cases where something was specifically done online, it is now a part of nearly every case. From pulling up messages between quarreling divorcees to tracking down purchases for far more serious cases, digital evidence is bound to be brought to the courtroom for practically everything.
As such, it’s a key concept that every legal professional needs to understand in order to perform their duties properly, and it’s a concept that the average person should be well-acquainted with in case they ever need to enter the courtroom and leverage or defend against digital evidence.
What are Some Examples of E-Discovery and the Evidence Gathered with it?
E-Discovery forms a large umbrella over a number of potential types of digital content. It’s not just one thing, and it’s far more than a couple of things.
In this section, we want to look at some of the forms of digital evidence that E-Discovery deals with.
1: Emails
Emails are frequently used in a multitude of cases. Many times, whether in criminal cases or civil cases, emails can be used to get an undeniable look at exactly what was said, planned, etc. when the issue in question took place or leading up to it.
Emails can produce some issues, though. Like many forms of digital evidence, the procurement of access to emails and other fine details can come into question.
Emails can be used to uncover plans for more sinister crimes, or they might be as simple as determining whether a “verbal” agreement took place or not. It really depends on the case, but these can be invaluable to a legal team on either side of an issue.
2: Purchase History
In some cases, it might be necessary to determine how someone accessed certain items or materials used to commit a crime. In that case, accessing their purchase history across multiple platforms might be necessary to show how, when, and potentially why they purchased relevant materials.
3: Identification Through Social Media
We just saw this in a massive national issue. Sometimes, accessing photos, profiles, and similar things can be necessary to identify someone who was caught doing something on camera without being detained right away. Cross-examining images of the offender captured on camera with profile pictures on social media and similar platforms can help positively identify the suspect or evidence of them bragging about the action might be found online. This happens in many small cases where someone is denying something in court but openly admitted to it on their social media pages.
4: Digital Assets
It’s not uncommon for people facing lawsuits, divorce cases, and other financial litigation situations to try to hide some of their assets. In the modern world, many of the most valuable assets are digital. Thus, E-Discovery can be used to get the full picture of what someone does or does not have financially.
Problems with E-Discovery That You Should Know About
E-Discovery might be a major part of modern litigation, but it’s not perfect. In fact, because of the complications related to the digital world not translating well to the courtroom’s focus on tangible evidence, it has to be governed by a long list of strictly enforced guidelines.
These guidelines tend to create some problems for legal teams.
1: Preserving Data in its Original Form
This is a major concern. Digital data is typically associated with a long list of metadata. These are things such as time stamps, geo-location stamps, editing histories, and more. Take a moment to go through your computer’s picture library, and you’ll see the metadata associated with each one. If one of those photos were to be used in litigation, the team using it would have to preserve all of that data without editing it. The timestamp can’t change, the location stamp can’t change, and it must appear exactly as it did when it was sourced. If it’s edited in any way, its validity comes into question.
This is largely because of how easy it is to fabricate things in a digital space. Simply look at how easy it is to edit the time stamp on a photo or use Photoshop to add or remove things from images. In the courtroom, allowing any potential for those actions to be taken can be catastrophic.
2: Collection of Data
This is a big one, too. Just because someone is embroiled in a legal case doesn’t mean they lose all their rights to privacy and legal teams can just start stealing their data. There is a well-defined process that has to be followed by the T to ensure that all information gathered is gathered in an ethical and secure way.
The guidelines covering this determine what software can be used to gather evidence, what approval is necessary to gather and produce such evidence, how that evidence has to be stored, and similar things.
If your team doesn’t abide by these guidelines while collecting digital evidence, that evidence can work against you in the courtroom or nullify your case entirely.
3: Presentation of Gathered Evidence
Even if you follow all the guidelines necessary to preserve and ethically gather evidence, you can’t just present it however you want. Like other forms of evidence, you must present that evidence to all sides during the presentation phase, and the way you do that needs to be clear, organized, and concise. There are guidelines for how that is done, but it’s meant to maintain transparency in the case and allow everyone a fair chance to defend themselves or produce counterarguments. Gathering some emails, withholding them, and then suddenly giving a stack of printed emails to the judge simply isn’t going to be seen as acceptable.
4: Organizing Your Gathered Data Before the Case is Important
With E-Discovery, even the most basic forms of evidence can be extremely lengthy. For example, if you gain access to emails, and you simply print off their entire email history, the court doesn’t have time to dig through every email they’ve ever sent to find the handful that is actually relevant to the case. That’s simply not productive, and there are other problems that can occur such as violating privacy or muddying up the presentation of the evidence with a lot of irrelevant information that sways opinions unfairly.
Instead, it is required that you go through a processing phase where your team sifts through all available data, picks out the most relevant parts, and organizes all of that into an easy-to-analyze piece of evidence the court can realistically get through.
5: Translation to Physical Evidence
Finally, another issue that tends to affect teams is that you can’t just bring a phone or computer in and show off what you’ve found. All digital evidence needs to be converted into a physical version.
The easiest example of this is something we’ve already mentioned; printing off copies of emails.
It is far easier, and more reliable, to disperse physical copies of digital data to the courtroom than it is to keep it in its digital state, and preservation of that data is also far more reliable. While hard drives can fail and delete crucial elements of a case, it’s fairly easy to store printed copies long-term.
What Contributes the Most to E-Discovery Issues in Litigation?
We’ve gone over how complex E-Discovery can be, but it’s not any more complex than many other legal concepts. So, why do so many teams seem to struggle with it?
Well, it can come down to one of two things in most situations. We’ll talk about each issue independently.
A: Lack of Experience
While E-Discovery is more common now than ever, it’s still not something that every team has a lot of experience with. That means that, when it becomes an issue, it’s usually too late to learn its ins and outs as you go. It’s certainly not something you want to do on the fly, because even a minor mistake can have that evidence disregarded or impact the case negatively.
B: A Lack of Existing Infrastructure
While every team has to deal with E-Discovery, it’s still new enough that many legal teams lack the infrastructure necessary to perform it properly.
E-Discovery requires months of data collection, software usage, organization, and of course, self-auditing to ensure everything is done properly.
When a firm or legal team isn’t prepared to handle all of those requirements, mistakes happen. Human error can go unchecked, and minor issues can occur that have dramatic impacts on the case.
Even lower-level employees might create a major problem by accidentally deleting gathered evidence, which not only denies you the use of that evidence but directly contradicts legal guidelines you’re required to follow.
Getting Help with Your E-Discovery Needs
E-Discovery is a growing part of litigation in several forms, and it’s something that every legal professional and firm needs to understand fully. It’s also not something you can afford to learn on the fly as it becomes necessary on a case-by-case basis.
However, it’s not always plausible to navigate such complicated legal concepts on your own. Sometimes, you need professional help to better serve your clients, understand the concept, and comply with all guidelines.
That’s what Litigation Legal Insight is here to help with.
We can help your team meet compliance guidelines, meet your E-Discovery needs, and keep your case on track.