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E-Discovery FAQs

Q.        What is “e-discovery”?

The term “e-discovery” describes the production of electronic files and metadata.  It may include everything from cell phone messages, emails, flash drives, back-up tapes and computer hard drives.  It can be anything stored on an electronic device.

Q.        Why should I be concerned about “e-discovery”?

E-discovery can be important in lawsuits, because it may provide information to win or lose a case.  If you anticipate litigation and have relevant information in electronic files, you must save them.  In certain cases, Illinois law requires a party to preserve electronic files even before litigation begins.

Q.        What can happen if a party destroys “e-discovery”?

Destroying relevant files is called spoliation.  If a court learns of spoliation, it can impose severe sanctions against the spoliating party, including entry of a default judgment (the non-spoliating party wins), drawing an adverse inference (deciding an important fact in the non-spoliating party’s favor) or imposing monetary sanctions.  Claims involving spoliation of electronic files can be expensive and time consuming, especially if an IT expert must examine the extent of the destruction.

Q.        What is “Metadata”?

The term “metadata” describes two kinds of information about electronic files: application and system.  “Application metadata” is created as a function of the application software used to create the document or file, and includes information about modifications to the file, prior edits and editorial comments.  “System metadata” is stored outside of the file, and includes information such as the title of the document and the user identification of the computer.

Q.        What files must I save?

Illinois cases are not clear on exactly what a party must save; it generally depends on the facts of a particular case.  We advise our clients to err on the side of caution and save everything they think might be relevant if they reasonably anticipate litigation.

Q.        How can I reduce the cost of e-discovery?

E-discovery can be notoriously expensive.  We try to meet with the opposing lawyers early in our cases to agree on what documents each party should save and how they expect to produce their documents.

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