Your Guide to eDiscovery in Law

The way organizations manage information has fundamentally changed and eDiscovery has now taken hold as the major kind of discovery in law; eDiscovery is expected to grow by 9.3% from 2020 until 2030. The days when discovery in litigation meant sifting through filing cabinets and stacks of paper are a thing of the past.

Today, the majority of business records are digital, ranging from emails and text messages to cloud documents, collaboration platforms, and even social media interactions. This shift has created enormous opportunities for efficiency but has also introduced new layers of complexity when legal matters arise. Managing this explosion of electronically stored information (ESI) is no small task, and that’s where eDiscovery comes in.

At its core, eDiscovery refers to the process of identifying, collecting, preserving, and analyzing digital data for legal or regulatory purposes. It ensures that organizations can comply with court rules, respond to government inquiries, and protect themselves in litigation by providing accurate, defensible records. Because data volumes are massive and formats are diverse, eDiscovery has evolved into a highly specialized field requiring both legal knowledge and technical expertise. It’s no longer optional for businesses, law firms, or government agencies, as effective eDiscovery is essential for minimizing risk, controlling costs, and achieving favorable outcomes in disputes.

As technology advances, eDiscovery has become inseparable from the tools and processes that support it. Specialized software platforms now automate much of the heavy lifting, artificial intelligence enhances speed and accuracy, and certifications and training programs help professionals build the expertise needed to manage the process responsibly. For legal teams and organizations alike, understanding eDiscovery is not just about compliance; it’s about staying competitive in a world where data drives every decision and every case.

This article is a guide that answers key questions about eDiscovery in law, helping you navigate it and excel at it when need be.

Understanding eDiscovery for All Your Legal Needs

1. What is eDiscovery?
   • a. eDiscovery is the process of identifying, collecting, preserving, reviewing, and producing electronically stored information (ESI) for use in legal proceedings. This can include emails, documents, instant messages, social media content, and other forms of digital communication. It ensures that relevant information is gathered in a defensible way that complies with legal standards.

2. What is eDiscovery software?
   • a. eDiscovery software is a tool designed to streamline the eDiscovery process. It allows legal teams to search, filter, analyze, and review large sets of digital data efficiently. These platforms often include features such as advanced search, predictive coding, document review workflows, redaction tools, and reporting capabilities to improve accuracy and save time.
3. How to give eDiscovery permissions?
   • a. In many systems, such as Microsoft 365, or other enterprise platforms, administrators grant eDiscovery permissions by assigning roles through an admin center or compliance portal. This typically involves designating specific users as eDiscovery managers or administrators, giving them the ability to create cases, perform searches, and export results while maintaining security controls.
4. How do I get eDiscovery training?
   • a. eDiscovery training is available through professional associations, technology vendors, and universities. Organizations such as the Association of Certified E-Discovery Specialists (ACEDS) offer structured programs. Here at Consilio, you’ll find a groundswell of eDiscovery training resources, from our eDiscovery practice guides to our eDiscovery white papers to fortify your edification.
5. How do I get eDiscovery certification?
   • a. To obtain eDiscovery certification, professionals often pursue credentials like the Certified E-Discovery Specialist (CEDS) from ACEDS or platform-specific certifications such as Relativity Certified Administrator (RCA). These certifications validate expertise in managing eDiscovery projects, understanding legal requirements, and leveraging software tools effectively.
6. How do I access eDiscovery?
   • a. Accessing eDiscovery typically involves logging into an organization’s designated compliance or case management portal. For example, in Microsoft 365, users with assigned roles can access eDiscovery through the Microsoft Purview compliance portal. In vendor platforms, access is granted through secure, role-based logins.
7. How to collect data for eDiscovery?
   • a. Collecting data for eDiscovery requires careful planning to ensure the information is accurate, defensible, and admissible in court. The process typically starts with identifying custodians (individuals likely to hold relevant data) and data sources such as email servers, file shares, collaboration platforms, or cloud storage.
   • b. Once identified, data must be preserved in place to prevent alteration or deletion, often by issuing a legal hold. Forensic collection methods, such as imaging hard drives or using specialized tools, are then used to capture data without compromising metadata or chain of custody. Many modern platforms also allow targeted, automated collection directly from enterprise systems, reducing disruption to business operations. Throughout the process, documentation is critical to show that the data was collected in a consistent, secure, and legally defensible manner.
8. What are the challenges in eDiscovery?
   • a. eDiscovery presents several challenges, including managing vast data volumes, ensuring privacy compliance, handling cross-border data transfers, and maintaining defensibility. Costs can escalate quickly, and technology complexity requires skilled professionals to manage the process. Emerging data sources, such as apps and collaboration tools, also add layers of complexity.
9.  What's the significance of ephemeral messaging in eDiscovery?
   • a. Ephemeral messaging, in which digital messages are designed to automatically disappear or delete themselves after a short period, includes tools like Slack, Teams, Signal, or Google Chat. These tools auto-delete messages after a set time have become major in eDiscovery, as they challenge the traditional duty to preserve relevant information once litigation is reasonably anticipated. Unlike email or stored files, these platforms often default to short retention windows (sometimes just 24 hours), meaning potentially critical evidence can vanish quickly if no hold is placed.
   • b. Courts have repeatedly made clear that “ephemeral” does not mean “exempt.” Thus, if the platform is used for substantive business discussions, these messages are subject to the same preservation and production obligations as emails or documents.
   • c. The significance is twofold. First, ephemeral messaging raises risk of spoliation: if relevant data is lost due to auto-deletion, courts may impose sanctions under Rule 37(e), ranging from cost-shifting to adverse inferences, as seen in recent cases involving Slack and Google Chat. Second, it forces companies to rethink their information governance. Organizations must set defensible retention policies, issue litigation holds that suspend deletion features, and consider proactive collection strategies. In short, ephemeral messaging represents both a liability if mishandled and a new frontier in eDiscovery compliance, where courts expect the same diligence applied to these dynamic tools as to traditional email archives.
10.  How can AI be used in eDiscovery?
    • a. Artificial intelligence is transforming eDiscovery by improving efficiency and accuracy. AI-powered tools can categorize and prioritize documents, detect patterns, and enable predictive coding (also known as technology-assisted review, or TAR). This reduces manual workload, accelerates case timelines, and helps uncover key insights that might otherwise be missed.
11. What’s a recent example of a lawsuit in the United States, in which eDiscovery was important?
    • a. In Globus Medical, Inc. v. Jamison (E.D. Va. 2023), Globus sued former sales representatives for breaching non-compete agreements and misusing confidential information. A central dispute arose over eDiscovery, with Globus arguing that the defendants failed to preserve key electronic communications, including instant messages, and sought harsh sanctions for spoliation. The court evaluated these claims under Rule 37(e), which governs lost electronically stored information (ESI). To succeed, Globus had to show that relevant ESI was lost, that it could not be replaced through other means, and that defendants acted with intent to deprive.
    • b. The court ultimately found that Globus did not meet this burden. While there were discovery shortcomings, Globus could not prove by a preponderance of evidence that critical ESI was irretrievably lost or that defendants intentionally destroyed it. As a result, the court denied the request for extreme sanctions, such as an adverse inference or default judgment. The ruling highlights two key lessons: courts now demand concrete evidence of both loss and intent before awarding severe sanctions, and parties must proactively preserve modern communication tools like Slack or Teams, treating them with the same seriousness as email when litigation is reasonably anticipated

Wading the Waters of eDiscovery

Navigating the complexities of eDiscovery is no longer optional, as it’s a critical component of modern legal practice. From understanding the regulatory state of it to leveraging technology for efficient data collection and review, mastering eDiscovery ensures that legal professionals can protect client interests, manage risk, and respond to litigation or investigations with confidence.

While tools and platforms simplify the process, the human element, such as sound judgment, strategic planning, and ethical decision-making, remains irreplaceable. By combining technological efficiency with expert legal insight, law firms and corporate legal teams can transform eDiscovery from a procedural obligation into a competitive advantage.

Ultimately, staying informed, proactive, and adaptable is key. The state of electronic evidence will continue to evolve, and those who embrace best practices today will be best positioned to navigate the challenges of the future.

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