Document discovery is a pre-trial procedure in the US under which parties to litigation produce documents in support of their contentions. Often, parties come to a settlement after reviewing the documents. Effective and efficient document discovery thus has the potential to save significant amounts of money to litigants if expensive and time-consuming trials are thus avoided.
1. Where the documents involved are electronic, document discovery becomes an electronic discovery. Whether electronic or paper, document discovery involves an obligation to send documents to the other party. While doing so, parties can remove parts of the content that harms their case.
2. Electronic discovery is typically quicker and easier than physical discovery under a good electronic document management system. Proving the authenticity of electronic documents can be more difficult, however, as they are easy to modify and even delete.
3. Unless dependable audit trails are available to prove all the changes made to the documents since its creation, its authenticity might be challenged. Computer applications can be programmed to create audit trails that record document creation date, subsequent accesses and details of changes made.
4. Voluminous electronic documents such as emails chat records are often periodically deleted to make space on the storage media. This can however result in important evidence being destroyed. Law has now stipulated that once litigation has commenced or even suspected, all deletions and modifications must stop.
5. Electronic documents typically contain metadata that is automatically added when documents are created or modified. Such metadata can play an important role in authenticating documents. Metadata can also inadvertently provide evidence that harms the provider’s case, and hence extreme care is needed while providing electronic documents in their raw state.
6. Producing documents in their native file state is not always needed. Often they are provided as printouts or in PDF format documents. Acceptability to the other party or the circumstances of the situation determines in what form the document is to be produced.
7. An electronic document can have multiple versions, and can also reside at several locations as in the local workstation desktop, network server, laptops and even employee’s home computers. This can pose problems for electronic discovery and require careful handling.
8. Producing legacy data that resides only in archives or backups can prove expensive. In such cases, the data can be deemed as “inaccessible” and the costs of accessing it might be agreed to be shared between the parties.
9. Parties can often harass other parties by insisting on production of documents that are very difficult to produce. Good document management systems with systematic archiving procedures that include preservation of all versions of multi-version documents can prove of high value in electronic discovery.