10 Considerations for eDiscovery Attorneys Handling Electronic Discovery

eDiscovery, the discovery of documents in electronic formats, is an important issue for attorneys to consider in their cases. Even though these responsibilities are often handed off to eDiscovery paralegals, professionals, or vendors, the decisions that occur downstream after that handoff can have a variable impact on the outcome of your case. In addition to FRCP Rule 26, every eDiscovery attorney should take the following issues into consideration when planning eDiscovery workflow efforts.

1. Volatility

How many times have you accidentally deleted a document? How many times do you open and close files each day? Digital data is fast and changeable. When you power on a computer, hundreds of events occur in the background that enable your monitor, mouse, keyboard, internet, files, and other attached items to work together. This alone can potentially overwrite log files or temporary data. User files are subject to loss from user deletion, internet sync, malware/ransomware, or retention policies set to wipe after a set time period.

It’s best to preserve prior to litigation or immediately upon receiving a production request. An effective preservation strategy, sometimes called a litigation hold, ensures that relevant data is locked down before anything is lost or altered. Preservation is often easy to perform if you start early. Many businesses use cloud email and storage solutions with built-in tools for enforcing litigation holds. In the case of Google Vault and Office 365 eDiscovery, this can be as easy as clicking a few buttons. For powered-off items, like older computers and phones, you can take custody of these and leave them in a secured location where there is no risk of accidental disposal or use.

All discovery deals with volatile data. Paper documents can be shredded or damaged by poor storage, but digital data has many more moving pieces that introduce risk.

2. Volume

USB flash drives, phones, and laptops are deceptively small, potentially containing MILLIONS of files. As you can imagine, reviewing millions of files would take a long time. Under FRCP Rule 26(b)(2), the scope of discovery must be proportional to the needs of the case, which means volume is not just a logistics problem but a legal one. Courts increasingly expect attorneys to demonstrate that their discovery requests and review efforts are reasonable relative to the amount in controversy and the importance of the issues at stake.

Thankfully, you can cull this data down during the review process, and early case assessment (ECA) can help you understand the scope of your data before committing to a full review. Volume should factor into your review, storage, and timing decisions. More data takes more time to process and migrate. More data is also more expensive to store on eDiscovery platforms. If you don’t know the difference between gigabytes and terabytes, an eDiscovery expert can help you translate those numbers into effective time to prepare for eDiscovery production.

3. Format

Data format may change your electronic discovery strategy. Understanding which data is relevant and which data needs TLC (Time for a Little Conversion) will be crucial to reducing discovery costs and preventing hurdles. For instance, if you are dealing with a case where the theft of source code is at issue, you may be interested in analysis of code repositories. These files will not be viewable on a review platform and would require the assistance of an eDiscovery specialist to help interpret. If CAD diagrams or maps are at question, these will need to be converted to PDF or TIFF to view outside of a dedicated software program.

While we’re talking about PDFs or TIFFs, here’s a piece of advice. Always ask for the format you want when asking another side to produce to you. If you are not utilizing an eDiscovery review platform, you might look to PDFs as your document image format of choice. PDFs are often searchable or can be Bates numbered and made searchable.

If you have an eDiscovery vendor assisting with your production, receiving data in native file format may be preferred. Native files may contain important metadata and are usually smaller than PDF’s or TIFF files. Alternatively, TIFFs with extracted text, and an accompanying load file containing the metadata may be easily ingested into your eDiscovery review platform, allowing you to receive Bates numbered images, searchable text, and metadata fields.

4. Metadata

Metadata is data about data. Your discovery analysis should account for whether metadata is important to preserve and review. We recommend always requesting it in case it is needed later. Metadata, like timestamps, can help you narrow eDiscovery review efforts to relevant time periods to avoid working through decades of non-relevant items. Metadata can indicate whether data was edited after its creation. It may also reveal whether other copies of a file exist, or whether a particular file has been manipulated.

5. Location

Location can include a physical address, a secured or non-secured room, a particular computer, or a particular custodian (an owner of data). This will affect the eDiscovery process you need to use to obtain it. Data may be in your client’s email account, in an out-of-state branch office of a business, or at the house of an opposing party. These three scenarios all present technical and legal challenges to be considered during discovery.

We commonly see more data located in “the cloud.” This term simply means that data is located on someone else’s server, as opposed to one physically in the possession of a data custodian. Beyond traditional cloud storage like Dropbox, attorneys now need to account for data in workplace collaboration tools, for example, presents unique collection challenges because of threaded conversations, emoji reactions, and file sharing that standard export tools may not be fully captured by some acquisition processes.

Examples of cloud data also include posts to social media. This data must be accessed over the internet, although in some cases a cloud storage provider can mail you a physical copy of targeted data. Working with an eDiscovery consultant experienced in cloud-based eDiscovery collections can make a significant difference in how effectively this data is collected.

6. Compliance

When you collect files for eDiscovery, you may be subject to handling those items in accordance with legal or best practice protocols. You may need to redact sensitive information or encrypt storage devices used to transport productions.

The compliance landscape extends well beyond a single regulation. In healthcare, law firms reviewing documents that include PHI (protected health information) will need to adhere to HIPAA (Health Insurance Portability and Accountability Act) requirements. Corporate counsel dealing with consumer data must account for PII protections under frameworks like GDPR and CCPA. Financial institutions and their outside counsel face additional obligations under the Gramm-Leach-Bliley Act (GLBA) when handling customer financial records during discovery. Even eDiscovery for government matters introduces its own set of classification and handling rules.

Each of these regulatory frameworks affects your ability to use certain vendors or eDiscovery review platforms, and the requirements may overlap when a single case involves multiple data types. Failure to properly handle data according to rules around eDiscovery compliance could cause a law firm to incur fines or legal action.

7. Authentication

Before any electronically stored information (ESI) can be admitted at trial, it must be authenticated under Federal Rules of Evidence 901 and 902. For an ediscovery platform, this means planning for authentication from the moment data is collected, not as an afterthought before trial.

Authentication of digital evidence requires showing that the evidence is what it claims to be. This is straightforward for business records with clear chain of custody, but becomes more complex with social media posts, text messages, and screenshots. A Facebook post, for example, could be fabricated or altered, so simply printing a screenshot is rarely sufficient. Courts have increasingly required corroborating evidence, such as testimony from the account holder, metadata from the platform, or forensic analysis of the device where the content was captured.

Text messages present similar challenges. Messages can be deleted, conversations can be edited on some platforms, and screenshots can be manipulated. Collecting texts through eDiscovery forensics tools that capture native device data along with associated metadata provides a much stronger foundation for authentication than phone screenshots alone.

For any digital evidence, maintaining a documented chain of custody from collection through production is essential. Working with an eDiscovery expert who follows forensically sound collection practices can prevent authentication challenges from undermining otherwise strong evidence.

8. Search Terms

Searching for keywords may seem like an easy task, but that’s not entirely true. Keywords must be created based on the details of the dispute. Without enough information, you could miss out on shorthand, aliases, or common misspellings of words. When it’s time to look for these search terms, you may need to use eDiscovery-specific tools to account for variations in text extraction or encoding. Special keywords like email addresses may need to be run not just against eDiscovery document review content but against the metadata of documents. You may also need to translate keywords when more than one language is used by one or more parties in the case.

Some eDiscovery platforms now offer eDiscovery AI capabilities such as technology-assisted review (TAR) and predictive coding that go beyond simple keyword matching. These tools can help surface relevant documents that traditional keyword searches might miss, though they work best when guided by attorneys who understand the substance of the case.

9. Cost

It’s important to get an estimate of eDiscovery costs to preserve and review data before starting your efforts. You can work with an eDiscovery expert or vendor to discuss the issues in your case and where you need to focus any future budget. You may find that even though you want to identify all relevant data, it makes more sense to preserve all data and then review only a small, relevant subset of communications.

Keep in mind that FRCP Rule 26(b)(2) requires discovery to be proportional to the needs of the case. Courts weigh the importance of the issues, the amount in controversy, the parties’ resources, and the burden or expense of the proposed discovery. This proportionality standard gives you a strong basis for negotiating reasonable discovery scope during meet and confers or upon receipt of a production request.

Get an expert’s second opinion on how much full discovery, preservation through production, would cost so you can evaluate whether it is proportional to the dispute. Managed eDiscovery services and outsourced eDiscovery services can also help eDiscovery law firms control costs by providing predictable pricing models rather than open-ended hourly billing.

10. Visualization

If you have a large number of relevant documents that need to tell a story, you should consider how visualizations can help you in your case. Visualizations, such as graphs, videos, or side-by-side document comparisons, can be used both as evidence and as a tool during discovery to guide your strategy. For example, a graph showing what computers or phones contain the most hits on a search term (and what party uses that device) could allow you to determine the primary player in a workplace event. It could also be used to justify whether production of a particular keyword is overbroad. The eDiscovery Reference Model (EDRM) provides a useful framework for understanding how visualization fits into the broader eDiscovery lifecycle, from identification through presentation.

Frequently Asked Questions About eDiscovery

What is eDiscovery and why does it matter for attorneys?

eDiscovery is the process of identifying, collecting, preserving, reviewing, and producing electronically stored information (ESI) for legal matters. It matters because nearly all business records now exist digitally. Emails, chat messages, cloud files, and social media posts can all be discoverable. Even when the technical work is delegated to an eDiscovery paralegal or vendor, the strategic decisions around scope and proportionality fall on the legal team.

How much does eDiscovery cost?

eDiscovery costs depend on data volume, number of custodians, file complexity, and whether forensic collection is needed. A single-custodian email matter might run a few thousand dollars. A multi-custodian dispute spanning terabytes across multiple platforms can reach six figures. FRCP Rule 26(b)(2) requires discovery to be proportional to the needs of the case, so always get an estimate from an eDiscovery consultant before committing to a strategy.

What is the eDiscovery process?

The eDiscovery process follows the Electronic Discovery Reference Model (EDRM) through seven stages. Identification determines relevant data sources. Preservation and collection lock down that data. Processing prepares it for review by extracting text and removing duplicates. Review and analysis examine documents for relevance and privilege. Production delivers the final set to the requesting party in the agreed format.

What should law firms look for in an eDiscovery vendor?

Look for experience with your specific data types, forensically sound collection methods, a capable review platform with features like technology-assisted review, and a track record in your jurisdiction. Smaller firms often benefit from a full-service managed eDiscovery provider. Larger firms with in-house support may only need help with processing or hosting. Always ask about compliance certifications if your matters involve regulated data like PHI, PII, or financial records.

Can you use Office 365 for eDiscovery?

Yes. Microsoft 365 includes eDiscovery tools through Microsoft Purview that let you place litigation holds, search across email, Teams, OneDrive, and SharePoint, and export results for review. These native tools work well for straightforward matters contained within the Microsoft ecosystem. For cases involving multiple platforms, forensic-level collection, or advanced analytics like predictive coding, you will likely need to supplement O365 eDiscovery with a dedicated vendor or platform.

What is the difference between eDiscovery software and managed eDiscovery services?

eDiscovery software is a platform your team runs directly to process, review, and produce documents. It gives you control but requires trained staff. Managed eDiscovery services mean a provider handles some or all of the technical work on your behalf, such as processing, hosting, production, and project management. Firms that handle discovery regularly may only need software and a trained staff. Firms that encounter it less frequently or face complex or unfamiliar matters often find managed services faster, lower-risk, and more cost-effective.

How does AI help with eDiscovery document review?

eDiscovery AI primarily takes the form of technology-assisted review (TAR), or predictive coding. An attorney codes a sample set of documents, and the AI model scores the rest by relevance, prioritizing the most important files for human review. This can dramatically reduce manual review volume on large matters. Advanced tools also handle concept clustering, email threading, and near-duplicate detection. AI does not replace legal judgment. It puts the right documents in front of reviewers faster.

What compliance requirements apply to eDiscovery?

The main frameworks are HIPAA for healthcare data containing PHI, GDPR and CCPA for consumer PII, and the Gramm-Leach-Bliley Act (GLBA) for customer financial records. Government eDiscovery adds its own classification and handling rules. Each framework affects which vendors and platforms you can use, how data is stored and transmitted, and what redaction or encryption is required. These requirements often overlap in a single case, so your eDiscovery provider needs to account for all of them.

Don’t Navigate These Complexities Alone

The eDiscovery process touches every phase of litigation, from the moment data needs to be preserved through final production and trial presentation. Each of the ten considerations above can introduce risk if handled without the right expertise and tools.

Whether you need help drafting an ESI protocol, selecting the right eDiscovery software for your matter, or building a defensible discovery workflow, ArcherHall’s team of eDiscovery consultants is here to help. Contact ArcherHall today to build an eDiscovery strategy that supports your matter from preservation to production.