Since more than 95 percent of all information is electronic and it’s estimated that upwards of 97 billion emails are sent each day, it is no wonder that every lawsuit has electronic evidence. All IT shops protect themselves from disaster with the knowledge that every computer will fail, but computer systems are not designed to provide easy access for lawyers and judges.
In today’s world, it is no wonder that every lawsuit has electronic evidence. Unfortunately, for the most part, lawyers and judges do not understand IT or the Internet. As a result, litigation generally misses the mark regarding what is now referred to as "ESI," or electronically stored information. It is in your best interest to learn more about the legal issues regarding e-discovery to be prepared, since surely everyone reading this article will be impacted in the future, if not already.
Litigation in the United States is controlled by state or federal court systems, or, alternatively, by private arbitrations governed by the rules of the American Arbitration Association — or some other organization, like JAMS, which is a leading private alternative dispute resolution (ADR) provider.
Most people are familiar with the trial system because of television and movies, but are unfamiliar with arbitrations in which the hearing (rather than trial) is conducted by non-judges of one to three panel members (most often lawyers, but sometimes industry experts).
IT has become an integral part of the search for ESI in virtually every lawsuit, but lawyers do not always know what to ask or, even worse, how to interpret the answers received back from IT. So, this article will give some advice about what IT needs to be aware of in order to be prepared.
What Is Discovery?
Generally, after a lawsuit or arbitration is filed, there’s a period of time referred to as "discovery" that extends to just before the trial or hearing. Simply put, this is a time when each party of the suit has a chance to ask questions of the other parties. Each side is entitled to inquire about the claims and defenses, so that when the trial occurs there are no surprises. In fact, if a party withholds information, it may be penalized by losing the trial — or a mistrial may be called by the judge or arbitration panel. The evidence that is collected in discovery is used at the trial or arbitration hearing to prove or disprove specific claims.
There are four primary categories of discovery:
• written questions referred to as "interrogatories";
• requests for the production of documents and things;
• requests for admissions; and
• oral testimony called "depositions."
READ THE ENTIRE ARTICLE AT TechNewsWorld Part of the ECT News Network (published on July 9, 2009)
Judges and arbitration panels are having to come to grips with the fact that they have to understand ESI, since every case has some critical evidence that is only electronic. However, only about 5 percent of the cases filed actually go to trial, and most litigation is settled during the discovery process.
Clearly, IT has a role in every lawsuit because of ESI. As a result, the better prepared IT is for litigation, the better things will turn out.