Data types evolve faster than law. New data types are expanding the scope of discoverable data. The variety, velocity and complexity of electronic evidence challenge legal processes and the technology-enabled legal applications that are designed to support them. While email, documents and spreadsheets continue to comprise the majority of electronically stored information (ESI), social media, streaming media, big data and data products will all play roles in the pursuit of justice. They cannot be avoided.
Rules vary across venues, but the U.S. Federal Rules of Civil Procedure (FRCP) provide good context. In fact, Rule 1 is a touchstone for many e-discovery practitioners. Ideally, whatever the venue, the discovery process supports behaviors consistent with the FRCP Rule 1 guidance that the rules should be used to “secure the just, speedy, and inexpensive determination” of civil actions and proceedings. Expanding the scope of data to be identified, preserved, collected, processed, reviewed and produced has the potential to slow down discovery and increase cost, but if new data types contain uniquely dispositive content (either exculpatory facts or “smoking guns”), it will be necessary to include them in order to achieve just determinations.
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