Alex Helfand, ENCE, Computer Forensic Specialist

Electronic Discovery (e-discovery) has become a common method of obtaining information for a wide variety of legal investigations.  However, the potential costs of e-discovery are causing many litigants to waive the option of this technology for their cases.

Robert Hilson recently wrote an article for the Association of Certified E-Discovery Specialists that highlights this issue.  He states that attorneys are reverting back to paper discovery as a result of the high costs related to e-discovery.  These expenses include data mining, storage and databases to maintain discovery evidence, computer professionals, printing and preparation, etc.   These costs can add up to well over $500,000 for larger cases and are becoming a significant liability for the party that loses the litigation.

In a world inundated with electronic communication, ignoring e-discovery could mean ignoring key evidence.  This technology can recover and analyze deleted files, emails, encrypted files, Internet searches, Web sites visited and intentionally disguised files, and can be applied to smartphones and tablets in addition to personal computers.  And, as more interaction takes place on social media sites, e-discovery techniques are even being used to uncover activity on sites like Facebook and Twitter.  

E-discovery has been heavily used in court cases and has become significantly influential when determining innocence and guilt.  For example, in Murphy Oil USA, Inc. v. Fluor Daniel, Inc. , e-discovery was used to restore and search employees’ emails in order to resolve a contract dispute.  In AdvantageCare Health Partners, LP v. Access IV, Inc., a trade secrets appropriation case, the defendants were found to have deleted files from their hard drives.  These are only two of the thousands of cases where e-discovery uncovered essential case evidence.

However, while it is a necessary tool, the escalating costs of e-discovery cannot be ignored.  Law Technology News reports that proportionality – emphasizing the need for targeted, proportional discovery in a case – is a growing e-discovery trend as firms look for ways to contain costs.  Determining whether e-discovery should be part of the litigation process and to what degree will be an issue plaguing the legal community going forward.  But one thing is clear: as electronic transactions and activity continue to grow, e-discovery cannot be ignored.