E-Discovery Basics, Part One

When talking about electronic discovery, it is helpful to have some context. This post is an attempt to give some quick background information that is useful but yet not too boring.

The United States is a common law country, which means that the law is usually created and updated through decisions made by the courts. When a judge decides a case, she normally looks to precedent to make her decision - how have other courts in her jurisdiction decided this kind of matter? The judge's decision usually then becomes precedent for future cases.
The common law system is contrasted with the civil law system, where laws are normally written by a legislature into a legal code - a list of statutes which are the body of the law.

There is another meaning to "civil law" in the U.S. - here, it is contrasted with criminal law. Civil law usually involves litigation between private parties.
Civil procedure is the body of law which describes how the court handles a civil case - these are rules describing how a case is started, how to communicate with the other side, how to interact with the court and the judge, how to request documents from the other side, etc.
Civil discovery normally takes place before a trial - each side follows the rules of civil procedure to request documents and other material from another party in the lawsuit. The party receiving the request is responsible for examining and searching its own data for anything responsive to the request.

At the federal level in the U.S., the Federal Rules of Civil Procedure describe how a civil case is handled by the court system. These rules also guide the discovery process.
At the state level in the U.S., most states follow the Federal Rules, usually adding some modifications. There are exceptions, though: California and New York (among other states) have their own civil procedure rules.

Electronic discovery is now a very, very large part of civil discovery. Because of the importance of e-discovery, the Federal Rules of Civil Procedure were updated in December 2006 to address electronic discovery. The impacts of these changes are still spreading through the legal system, and e-discovery has become an exciting area of the law.