Electronic discovery is the process of preservation, identification, collection, reproduction, and review analysis of information stored in a digital format for the purposes of judicial proceedings. This information is shared between the concerned parties to allow them to prepare their defenses and court arguments. The electronic data includes emails, instant messages, memos, reports and presentations.
The conflict between the need to protect this data and the ediscovery process results from the fact electronic discovery involves free sharing of the information gathered while data protection tries to limit the availability of this information. During the initiation of the electronic discovery process, the Federal Rules of Civil Procedure (FRCP) did not take into account the ways of protecting or preserving electronic stored information (ESI). This has necessitated the need to find better ways to preserve the information from being disseminated and used by inappropriate parties including those not concerned with the litigation process.
Another point of conflict is the cost of the litigation process. Supporters of electronic discovery choose it because of the perceived reduced cost of the judicial process. This they say results from the ready availability of undisputable electronic evidence compared to having to search for witnesses who are either not credible or not available and demand a lot of compensation for their trouble. eDiscovery on the other hand involves the use of electronic data that is date and time stamped, has serial numbers, contain letterheads and signatures which are undisputable when produced as evidence. The problem is protection of this data is challenging especially with the available technology including social media.
The use of ediscovery is not as cheap as it sounds. The process of protecting and preserving the ESI is costly because lawyers may need to enlist the services of IT specialists to encrypt or use a series of passwords to protect the data. This translates to higher legal fees charged and therefore making the conflict over the cost unwarranted. The benefits of electronic discovery; however, outweigh the need to protect data. The cases are solved speedily because the electronically stored information is relevant, accurate, suitable, defensible, efficient and appropriate for use in litigation.