You say you don't know how to get started on electronic discovery? Here are some basic steps you can take in every case to discover information stored in an electronic format:
- Send a letter to your opponent asking that all electronic data be preserved. Often called a “preservation letter,” this step will make it easier for you to add a claim for spoliation of evidence if the opposing party destroys electronic evidence;
- Have the court enter an order requiring the preservation of electronic data;
- Embark on initial discovery to determine the scope of the opposing party's computer capabilities;
- Use what you learn in this initial discovery to tailor more specific discovery requests seeking the specific information you will need to prove your case (taking care, however, not to telegraph too much of your litigation strategies in the process);
- Consider the use of a electronic-discovery expert to help you make sure that you have considered all sources of electronic data that might be available from your opponent.
In my next post, I'll expand on step three: what sorts of discovery devices are available to find out the scope of the electronic information available in any particular case, and what should you be looking for?