Discovery is the technical term for handing over all documents that are relevant to a particular dispute. Electronic discovery, or e-discovery, is the process of handing over these documents in an electronic format. ‘Documents’ don’t just mean pieces of paper. They can include:
- text messages;
- videos; and
However, there are special requirements for providing these documents to your lawyer and the court. This article will explain the process of e-discovery and the importance of keeping electronic records.
I’ve Been Asked to Provide E-Discovery. Where Do I Start?
Instead of printing out all of your documents, you must provide them in electronic format.
The first thing to consider is where you can find these relevant documents. For example, in a business dispute, these documents might be on your business emails or on an online platform such as Shopify or PayPal.
They might also include invoices and communications that discuss the matters in dispute. You should make a list of where these documents might be. The list could include:
- text messages;
- e-commerce platform invoices;
- Facebook inbox messages;
- Instagram Direct Messages; and
- Whatsapp threads.
You will need to search your emails if you think they contain any relevant information. Ideally, your lawyer will have agreed on a list of key search terms with the other party. If not, you should discuss this with them.
For example, if the dispute is between your Your Business and Bob’s Apples regarding Red Apples you should search your email using Boolean operators for those terms. Boolean operators are simple words such as OR, AND or NOT which include or exclude keywords in a search. In this case, that would be “Your Business” AND “Bob’s Apples” AND “Red Apples”.
It’s important to note which search terms you have used before to save those documents. Eventually, you will have to provide a list of documents and inform the other party which search terms you have used. You should speak to your lawyers about the technology they use to sort and search files. Many law firms will have systems in place that should make this process easier and, in some cases, entirely automatic.
How Do I Hand Over Electronic Documents?
The first step is to ask your lawyer whether they have a preferred system for handing over documents. Other easy options might be:
- uploading your files to Google Drive or DropBox and then sharing them with your lawyer;
- loading your documents onto a USB and posting or delivering it to your lawyer’s offices; or
- for text messages, either exporting a copy of the text message chain (if possible) or taking screenshots.
There are lots of different ways to go about this, so think about what will be most convenient for you and your business.
Some disputes will require you to hand over files in their native electronic format. This might mean .eml files for emails or .PNG or .TIFF files for images. You should also make sure that you include any attachments to your communications in your discovery.
Engaging IT experts to extract the necessary data may be helpful in this scenario. Chasing up missing attachments or messages can rack up legal costs and slow down the litigation process.
Remember, the most important data in discovery is always: who said what and when? If you are unsure of the relevance of a document, flag it for your lawyers and they can make that decision for you.
How Do I Provide E-Discovery of Social Media?
There may be relevant messages on Instagram, within your Facebook inbox or comments on other social media pages. If your social media pages are publicly available, then you may not need to provide discovery of these documents.
It is up to the other side to extract the publicly available information they might need to use as evidence. Otherwise, if there are relevant communications in your private messages, you can take screenshots of those conversations or download them.
What Are The Benefits of E-Discovery?
Generally speaking, electronic discovery will be much faster and cheaper than discovery by hand. Instead of paying for lawyers or paralegals to comb through your documents, you will be able to extract the documents yourself or find a program to complete this for you.
Your lawyers should then be able to advise you on whether certain documents are unnecessary to hand over (perhaps due to client legal privilege).
Why is Keeping Electronic Records Important?
A common scenario for business people is conducting most of their dealings over text and phone calls. While a record of the phone calls you make will be kept by your services provider, a record of the content of your text messages won’t be. If possible, you should avoid deleting messages between yourself and business partners or clients as you may need these as evidence further down the track. You cannot delete these records once litigation is on foot.
Further, new court rules in many states and territories mandate electronic copies of documents. If you provide hard copies to the other side, they may object to your discovery or the court may pause proceedings until you provide discovery in the correct format.
Again, keeping proper electronic records and understanding your businesses’ computer systems can make this process less difficult, should it occur.
What Happens if I Find a Relevant Document After Discovery?
It is fairly commonplace to provide further discovery. Computers miss things, as do humans. If you have found documents that weren’t included in your initial discovery but you think might be relevant, contact your lawyers straight away so that they can ensure you are not in breach of your discovery obligations.
If you find yourself in a court dispute, you may be required to provide electronic copies of all relevant documents. Relevant documents may come from a variety of sources including social media platforms. E-discovery will ultimately save your business time and money in what would otherwise be a very expensive process.
Remember to keep original electronic records of messages and other relevant files between yourself and your business partners and clients, as you may need to produce these at a later date. If you need any help with this process, you can contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.
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