If you work in litigation and haven’t dealt with eDiscovery yet, you either bill in a parallel universe or you’ve been very, very lucky. However, as digital data continues to multiply, even the smallest matters now involve some form of electronically stored information (ESI).Let’s get the basics out of the way: eDiscovery is the process of identifying, preserving, collecting, reviewing, and producing electronic information for legal matters. Simple enough in theory. In practice? Let’s just say things can go off the rails quickly.
Why You Should Care
Discovery already accounts for a massive chunk of litigation spend. According to the American Bar Association (ABA), it can account for 80% of total case costs – and that number can grow. With everything from texts to Teams messages on the table, the sheer volume of data is overwhelming. Did you know people create 1.7MB of data per second?
That explosion of data translates to risk, cost, and complexity.
But here’s the kicker: beyond the dollars and documents, there’s also an ethical obligation. California spelled it out bluntly in a formal opinion: if you don’t understand eDiscovery, you have three options. One, learn it. Two, partner with someone who does. Or three, politely decline the case (Yes, really).
The Role of Counsel in the eDiscovery Universe
Regardless of firm size or tech budget, the duty of competence in handling ESI applies to all of us.
Your responsibilities include:
And no, this isn’t just for tech-forward firms or BigLaw associates with dual degrees in comp-sci and law. This applies whether you’re in a two-person firm or part of a Fortune 100 legal department.
Preserve First, Ask Questions Later
The foundation of eDiscovery is preservation. If relevant data disappears on your watch, you might find yourself explaining to a judge why a five-figure sanction (or worse) is totally undeserved.
Take the now-infamous Lester v. Allied Concrete case. A grieving widower deleted 16 Facebook photos (at his lawyer’s urging, no less). The result? Nearly $750,000 in sanctions and a five-year suspension for the attorney.
Lesson: Once there’s a "reasonable anticipation of litigation," you have to suspend ordinary deletion and get serious about preservation.
Legal Holds: Your Litigation Seatbelt
A defensible, implemented preservation plan isn’t a formality - it’s your duty.
Effective holds are:
Bottom Line: eDiscovery Isn’t Optional
Whether you are in-house counsel, outside litigation support, or just the person who gets panicked calls when "the server ate the emails," eDiscovery is part of your world now. And it’s not going away.
Part two of this series (coming soon!) will dive deeper into the tactical side of eDiscovery like the 26(f) conference, working with custodians, search terms, and how to navigate the process without losing your mind (or your budget).
In the meantime, remember: if it creates data, it could end up in discovery. Even those Slack messages you sent about lunch.
Want a more personal intro to eDiscovery for you or your firm's first-year associates? Proteus gives this topic as a CLE. We’d be happy to come to your organization to present and dive deeper. Let's talk.