The Two Distinct Meanings of the Term "Electronic Discovery"

Lawyers are frequently confused about the term "electronic discovery." It's no wonder, since lawyers and electronic-discovery vendors often use the terms in distinctly different ways.

The terms "electronic discovery" can have either of the following two meanings:

• A set of rules and procedures designed to locate admissible evidence from facts created and stored in electronic format. This set of rules and procedures almost always overlaps with the rules and procedures lawyers use to find information stored in paper format; and,

• The process of uncovering, collecting, searching, and manipulating information created and stored in electronic format in attempt to locate admissible evidence.

When litigators say "electronic discovery," they are often giving the term the first meaning. Litigators are most often concerned about the procedures used to compel the other side to turn over electronic data in the first place. When electronic-discovery vendors say it, they are often using the second meaning. Electronic-discovery vendors are most often concerned about making use of electronic data once it's already in the requesting lawyer's possession.

In discussions of electronic discovery, the participants often fail to clearly define which of the meanings they are giving the term. By becoming aware of the distinction, you will be more likely to understand discussions about electronic discovery.

In other electronic-discovery news, I am now participating in a monthly column about e-discovery at DiscoveryResources.org with Dennis Kennedy and Tom Mighell. Our first column is titled "Disconnect and Discontent - The Electronic Discovery Landscape in Summer 2005."

Comments

[Eh Nonymous]

But Evan, which of the two meanings of e-discovery do you intend to discuss in your column?

Thinking back, I believe you were mostly talking about #1.

Can't we just call it the two facets of the complete concept of e-discovery? The getting-it phase and the analyzing-it phase? Trawling and sorting? Obtaining and identifying? Receiving and using?

[Evan]

"The getting-it phase and the analyzing-it phase"--that's not bad.