The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

eDiscovery or Discovery – the objective remains the same !

February 1st, 2022

We continue to have our own preferences as to what we call eDiscovery or Discovery.

Many suggest eDiscovery, others simply prefer Discovery. Within this do we have a hyphen or not, do we have a capital “E” or “D” – and that is even before the Brits throw in “Disclosure” and all the variations of?

Simply, does it really matter?

The objective remains the same as it has always been. Namely to get only what you need and do so it a way that is quick and cost effective – to help resolve the dispute.

Parking ‘what we call it’ debate completely, the eDiscovery [or INSERT YOUR VERSION OF] process is still the same as the discovery process was or is. As I wrote about a few years back, just because we added an “e” it doesn’t mean the obligations are any different. What has changed (and will continue to do so) is how we prepare for and manage the discovery process.

eDiscovery or Discovery – it is the proliferation of electronic information

Gone are the days where discovery may have solely consisted of letters, faxes and later emails – albeit often in voluminous paper form. Many would still argue that things were simpler in a paper world – although we are no longer in that world. Likewise at this time if you mentioned the term ‘eDiscovery’, the perception for many was simply the process of turning documents into an electronic form. When we first started this was what it was, although again – not for many years now !

The issue we face today is the increasing volumes of electronic data, providing new and evolving challenges for all discovery matters. We are all communicating differently than we did in the past, whilst the devices we use to communicate and store information are evolving exponentially.

The volumes and sources of data will evolve further, so it is important to adapt with this and not be tied to traditional practices. The adoption of Zoom, Microsoft Teams and further collaboration tools will present new data sources and challenges for the eDiscovery process – something that we are probably only starting to see in practice since their wider adoption since COVID.

The proliferation electronic information requires us to use more sophisticated electronic means to meet the objectives of the discovery process.  We are fortunate that many of the eDiscovery software enable us to be smarter to remove irrelevant material and target our approach to get to what we need.

Proactive, targeted and earlier !

Largely due to these data volumes it is important be smarter in how eDiscovery is approached, requiring considerably more work earlier in the discovery process to prevent the cost and burden spiraling out of control. The time invested at the outset can save thousands down the track, whilst lessening the burden.

As has been the case for many years the mistakes made in the discovery process are usually made at an early stage, which can prove very costly later in the proceeding. With today’s data volumes these mistakes can prove even more costly if not addressed – and early !

Regardless of whether we decide to call it ‘discovery’ or ‘eDiscovery’, the objective remains the same. It is simply a process that continues to be complicated by the proliferation of electronic information – although we now have electronic tools that significantly enhance the challenges we face.

To achieve the objective of only getting what you need in a way that is quick and cost effective – we do need to be more proactive, targeted and do so much earlier in the discovery process.




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