What Is the Connection between Electronic Discovery and Evidence?

C. Mitchell
C. Mitchell
Woman doing a handstand with a computer
Woman doing a handstand with a computer

In law, discovery is a way for one party to gather evidence against the other that can be used in court during a trial. The connection between electronic discovery and evidence, then, is that one feeds the other: electronic discovery makes finding electronically-stored or digitized pieces of evidence possible. Electronic discovery is a mainstay of U.S. law, but is also permitted with some restrictions in some other countries, including those in the European Union.

Also called e-discovery or ediscovery, electronic discovery is a pre-trial investigative process whereby one party has permission to search through nearly all of the electronic files and documents stored by the other. The driving force behind discovery is the thought that parties should have open access to all information that is potentially relevant to case being tried. Potentially relevant is generally understood to be a broad concept. As such, the volume of electronic information exchanged in e-discovery — e-mails, digital files and memoranda, online communications, and more — can be massive.

E-discovery can be seen as a means of evidence support in that it enables the lawyers to find, or “discover,” information that they can later use in trial. Getting electronic discovery and evidence to neatly correlate can take a lot of time, though. In most cases, the volume of documents and files surrendered in e-discovery takes up several hard drives or more. E-discovery really is a process in its own right. The goal is to yield evidence, but there is a lot more to it than that.

Lawyers often hire contract attorneys to perform discovery work, and usually also employ e-discovery software to help sort and categorize files received from the opponent. The sorting work is often tedious. Nevertheless, if it yields information that can help strengthen the lawyers’ case, it has been worthwhile.

Electronic discovery and evidence go hand in hand since electronic discovery enables lawyers to find new pieces of evidence — evidence that might otherwise have been buried in a digital archive somewhere. Almost anything that the lawyers find during e-discovery can be used as evidence. Evidence can be introduced at trial, used in briefing documents, and shown to the jury in most cases.

While not synonymous, electronic discovery and evidence collection often overlap. Supporting evidence can be collected in many different ways, however. A lot of evidence is found through electronic discovery, but a lot is also gleaned elsewhere, such as through interrogatories, depositions, and hard-copy facts and memos. Electronic discovery and evidence correlate only insofar as digitized information is concerned.

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