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E-Discovery Definitions

October 18, 2010

By Barbara Haubrich-Hass, ACP/CAS

In June, 2009 the California legislature enacted the Electronic Discovery Act.  This Act amended California Code of Civil Procedure §§ 2016.020, 2031.010, 2031.020, 2031.030, 2031.040, 2031.050, 2031.060, 2031.210, 2031.220, 2031.230, 2031.240, 2031.250, 2031.260, 2031.270, 2031.280, 2031.290, 2031.300, 2031.310, and 2031.320.  It also added CCP §§ 1985.8 and 2031.285.  This Act established the procedure and authority for a party in a civil action to obtain discovery relating to electronically stored information.

California Code of Civil Procedure § 2016.020 defines the term "elctronic" as "technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities."  "Electronically stored information" is defined in CCP § 2016.020 as "information that is stored in an electronic medium."

E-discovery is a very complex subject, with a very wide range of topics.  In California civil litigation, it is the discovery of electronically stored information through the use of the allowable methods listed in the California Code of Civil Procedure.  This includes e-mail, attachments, and other data stored on a computer, network, backup, or other storage media.  This article provides E-discovery terminology and definitions.  They can be used when serving discovery, whether it is special interrogatories, request for production of documents, a deposition notice with a production request, or subpoena for the production of consumer records.  It is important to provide a definition for E-discovery so that the responding party can understand the requested discovery.  The use of definitions will also reduce potential objections due to a vague or ambiguous question or request.

The following are explanations and definitions related to E-discovery in alphabetical order. 

• Application:  A specific software program such as Word, Excell, or Outlook.
• Attachment:  Electronic files appended to an e-meail message.
• Backup:  The activity of copying files or databases so that they will be preserved in case of equipment failure.  The retrieval of backup files is called "restoring" them.
• Burn:  The activity of copying files to a removable media, usually a CD-ROM or DVD-ROM.
• Concept Search:  Concept search in litigation refers to the search of electronic documents on the basis of ideas they contain, rather than just keywords.  It is usually implemented by broadening a keyword search to include synonymns or using a thesaurus to include results related to the keywords.
• De-Duplication:  The identification and segregation of exact or nearly exact files.  De-Duplication can substantially reduce the cost of working with an electronic document, as multiple copies of the same file need not be reviewed.
• Deleted Files:  When a file is deleted from an operating system, the contents of the file may still remain intact.  Specialized computer utilities can be used to reconstruct deleted files.
• Document Management System:  A computer system that tracks and stores electronic documents or image representations of paper documents.
• Electronic Image:  An electronic representation of a document in the form of a "bitmap", representing a two dimensional array of brightness values for pixels.
• Electronically Stored Information or ESI:  Files or other data that are stored on computers, file servers, disks, tape or other devices or media.
• Electronic Search:  In the context of E-Discovery, the ability to access all litigation documents in searchable electronic form and use selected keywords to find applicable documents for further review.
• Email string:  A series of e-mails linked together by e-mail responses and forwarding.  E-mail strings are often treated as a single document.
• ePaper:  An electronic version of a document, usually in a PDF or TIFF file format.
• File Server:  A computer used to store files for access by other client computers on a network of computers.
• Forensic Copy:  An exact bit-by-bit copy of a computer drive, including slack and unallocated space.
• Harvesting:  The process of retrieving electronic data from various computers and other storage media, including computer hard drives, file servers, CD/DVDs, and backup tapes and devices.
• Legal Hold:  A notice or communication from legal counsel to an organization that suspends the normal disposition or processing of records, such as backup tape recycling.  A legal hold will be issued as a result of current or anticipated litigation so as to avoid evidence spoliation. 
• Logical Document Determination or LDD:  A process of document grouping or separation used in some E-Discovery litigation support processes. LDD is the process of combining the separate pages into one electronic document for purposes of coding or OCR.
• Metadata:  The basic definition is "data about data."  It is the information about a piece of content that is not a core part of the content.  Metadata is data that contains information about other data.  For example, a photograph.  The content of the image itself is not metadata.  Metadata would be the date the photograph was taken, by whom, and any other data that you can capture about the content of the photograph.
• Native File Format:  Electronic documents produced as originally maintained and used, such as Microsoft Word.
• Outlook:  Microsoft's personal information management (PIM) program that includes e-mail, task management, and a calendar. 
• OCR or "Optical Character Recognition":  The process of taking scanned images and electronically converting them into editable text. 
• OST File Format:  File format used by the Microsoft Outlook as an offline folder file to make it possible for the user to work offline and then to synchronize changes with the Exchange server the next time the user connects.  The OST file will be saved on the local computer.
• PDF:  Developed by Adobe.  PDF is the de facto standard for the exchange of electronic documents.  PDF preserves the fonts, images, graphics, and layout of any source document. 
• PST file format:  File format used by the Microsoft Outlook personal information management program.
• TIFF (Tagged Image File Format):  An electronic copy of a paper document in the form of an image that contains no embedded text, fonts, images, or graphics. 
• Windows Mail:  Microsoft e-mail program included in Windows Vista as a successor to Outlook Express.