What is eDiscovery? How legal holds and the discovery process work

eDiscovery is discovery that covers electronically stored information, including email, text messages and data held in databases. A legal hold is the instruction that keeps that information from being lost: routine deletion is suspended for anything that may be relevant to litigation.

In the US, the Federal Rules of Civil Procedure set the rules for requesting, producing and losing electronically stored information. In England and Wales, Practice Direction 57AD sets disclosure and preservation duties in the Business and Property Courts.

What is eDiscovery?

eDiscovery meaning: discovery of electronically stored information

In civil actions, discovery is the process parties use before trial to gather information in preparation for trial, according to the Legal Information Institute at Cornell. eDiscovery applies that process to electronically stored information.

Under Rule 34 of the Federal Rules of Civil Procedure, a party may serve a request to produce and permit inspection, copying, testing or sampling of designated documents or electronically stored information in the responding party's possession, custody or control. The rule lists writings, drawings, graphs, charts, photographs, sound recordings and images among the items covered. It extends to other data or data compilations stored in any medium.

What counts as electronically stored information: email, messages, backups and metadata

The committee note to Rule 34 says the rule covers any type of information stored electronically. It names electronic communications, such as email, as a common example sought in discovery.

Practice Direction 57AD takes the same broad view for England and Wales. A document includes any record of any description containing information. That includes email and other electronic communications such as text messages, webmail, social media and voicemail, together with audio or visual recordings.

The term also reaches information stored on servers and back-up systems and electronic information that has been deleted. It extends to metadata and other embedded data that is not typically visible on screen or a printout.

US discovery scope: relevance, proportionality and sources that are not reasonably accessible

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Rule 26(b)(1) lists the factors: the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues and whether the burden or expense outweighs the likely benefit.

Rule 26(b)(2)(B) adds a limit for electronically stored information. A party need not provide discovery from sources that it identifies as not reasonably accessible because of undue burden or cost. On a motion to compel discovery or for a protective order, the party must show that the information is not reasonably accessible. The court may still order discovery from those sources if the requesting party shows good cause.

How electronically stored information is requested and produced under the US rules

Rule 34(b) sets out the procedure:

• The request must describe each item or category of items with reasonable particularity and may specify the form in which electronically stored information is to be produced.
• The responding party must respond in writing within 30 days after being served. The parties can stipulate to a shorter or longer time, or the court can order one.
• If the request does not specify a form, the party must produce the information in a form in which it is ordinarily maintained or in a reasonably usable form. A party need not produce the same information in more than one form.
• If produced information is subject to a claim of privilege, the party making the claim may notify the receiving party under Rule 26(b)(5)(B). The receiving party must then promptly return, sequester or destroy the specified information and any copies.

What is a legal hold?

Legal hold meaning: an instruction to preserve information that may be relevant to litigation

A legal hold is an instruction to preserve information that may be relevant to litigation and to suspend the routine deletion that would otherwise apply to it.

Neither the US rules nor Practice Direction 57AD use the term legal hold. They describe the duty instead.

The committee note to the 2006 amendment of Rule 37 uses the term litigation hold. It says that when a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a litigation hold.

In the US, Rule 37(e) addresses electronically stored information "that should have been preserved in the anticipation or conduct of litigation".

In England and Wales, paragraph 4.2 of Practice Direction 57AD includes an obligation to suspend relevant document deletion or destruction processes for the duration of the proceedings.

When the duty to preserve starts in the US and the UK

Rule 37(e) ties preservation to the anticipation or conduct of litigation.

Under paragraph 3.1 of Practice Direction 57AD, a person who knows that it is or may become a party to proceedings that have been commenced, or who knows that it may become a party to proceedings that may be commenced, must take reasonable steps to preserve documents in its control that may be relevant to any issue in the proceedings. Legal representatives who have the conduct of litigation, or who are instructed with a view to it, have a matching duty under paragraph 3.2.

Both duties are continuing. They last until the conclusion of the proceedings, including any appeal, or until it is clear there will be no proceedings.

What a legal hold involves under Practice Direction 57AD

Documents to be preserved include documents that might otherwise be deleted or destroyed under a document retention policy or in the ordinary course of business. Preservation includes, in suitable cases, making copies of sources and documents and storing them.

The preservation duty includes three obligations:

• Suspending relevant document deletion or destruction processes for the duration of the proceedings.
• Sending a written notification to relevant employees and former employees where there are reasonable grounds for believing that they may hold disclosable documents that are not also in the party's possession.
• Taking reasonable steps so that agents or third parties who may hold documents on the party's behalf do not delete or destroy documents that may be relevant to an issue in the proceedings.

A written notification should identify the documents or classes of documents to be preserved. It should tell the recipient not to delete or destroy them and to take reasonable steps to preserve them.

Legal representatives must, within a reasonable period of being instructed, notify their client of the need to preserve documents and obtain written confirmation that the client has taken the required steps. Each party must also confirm in writing, when serving its particulars of claim or defense, that steps have been taken to preserve relevant documents.

What happens when electronically stored information is lost

Rule 37(e) applies when electronically stored information that should have been preserved is lost because a party failed to take reasonable steps to preserve it, and the information cannot be restored or replaced through additional discovery. The court then has two routes:

• On finding prejudice to another party from the loss, it may order measures no greater than necessary to cure the prejudice.
• Only on finding that the party acted with the intent to deprive another party of the information's use in the litigation, it may take any of three steps. It may presume that the lost information was unfavorable to the party. It may instruct the jury that it may or must presume the same. It may also dismiss the action or enter a default judgment.

In England and Wales, a party complying with an order for Extended Disclosure that cannot produce a particular document must describe it with reasonable precision. It must also explain the circumstances in which, and the date when, the document ceased to exist or left its possession.

What is the difference between eDiscovery and a legal hold?

eDiscovery covers requesting, searching for and producing electronically stored information. A legal hold covers keeping that information from being lost in the first place. The table sets out the differences.

Point	eDiscovery	Legal hold
What it covers	Requesting, searching for and producing electronically stored information	Preserving information that may be relevant to litigation and suspending its routine deletion
When it applies	When a party serves a request within the scope of Rule 26(b) (US) or an order for disclosure is made (UK)	In the anticipation or conduct of litigation (US Rule 37(e)) or when a person knows it is or may become a party to proceedings (UK PD 57AD paragraph 3.1)
Main obligation	Respond in writing within 30 days of a Rule 34 request unless the parties or the court set another time	Take reasonable steps to preserve relevant information
If it goes wrong	A party may move for an order compelling disclosure or discovery (Rule 37(a))	The court may order measures to cure prejudice or, where intent to deprive is found, presume the information was unfavorable (Rule 37(e))

Preservation comes first and discovery follows

The duty to preserve can begin before discovery does. Rule 37(e) refers to the anticipation of litigation. Rule 26(d)(1) says a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), with exceptions for certain proceedings and for discovery authorized by the rules, by stipulation or by court order.

How does disclosure work in England and Wales?

Practice Direction 57AD: scope and start date

England and Wales uses the term disclosure. Practice Direction 57AD says disclosure involves identifying and making available documents that are relevant to the issues in the proceedings. It provides for disclosure in the Business and Property Division. Its Commencement Date is October 1, 2022, and it applies to existing and new proceedings in the Business and Property Courts of England and Wales.

Unless otherwise ordered, it does not apply to certain proceedings, including claims within the Intellectual Property and Enterprise Court and the Admiralty Court.

Initial Disclosure and the five Extended Disclosure models

Unless an exception applies, each party provides Initial Disclosure with its statement of case. That is a list of documents, with copies, covering the key documents it has relied on and the key documents the other parties need to understand the claim or defense they have to meet.

Extended Disclosure uses five models:

• Model A: disclosure confined to known adverse documents.
• Model B: limited disclosure of the key documents relied on and the key documents needed to understand the claim or defense, plus known adverse documents.
• Model C: disclosure of particular documents or narrow classes of documents.
• Model D: narrow search-based disclosure.
• Model E: wide search-based disclosure, ordered only in an exceptional case.

There is no presumption that a party is entitled to search-based Extended Disclosure. The court makes that order only where it is persuaded that it is appropriate in order fairly to resolve one or more of the Issues for Disclosure.

Searches, known adverse documents and production of electronic documents

A document is adverse if it contradicts or materially damages the disclosing party's contention or version of events on an issue in dispute, or supports the opposing party's. A party must disclose known adverse documents, unless they are privileged, whether or not any order for disclosure is made.

Where a model requires searches, the parties must discuss and seek to agree limits on their scope. Paragraph 9.6 lists limits by date range, custodian, document class, file type, repository, location, system, device and keyword or other automated search. It also covers software and analytical tools, including technology assisted review.

Unless agreed or ordered otherwise, a party produces disclosable electronic documents as copies in their native format, in a manner that preserves metadata.

Where does email fit into eDiscovery and legal holds?

Email sits inside both topics. The Rule 34 committee note names email as a common target of discovery, and Practice Direction 57AD lists email among the records that count as documents. Paragraph 4.2 also calls for written notification to relevant employees and former employees who may hold disclosable documents that the party does not also hold.

Metadata must be in place for Microsoft 365 to manage legal holds automatically. Ideagen Mail Manager supports that process, and users can apply additional metadata within the same workflow of saving email to Microsoft 365. For more on metadata and legal matters, read Legal matters information and records compliance.