Jun 25

e-discovery

Tag: Informática LegalJoaquim Anguas @ 1:33 pm

I am afraid of those terms that start with «e-«. They tend to be created by someone not in the area of expertise, unable to find a better match for a concept he/she wants to use. I prefer to label a common term if really needed, because to me, creating new terms is mostly unneeded and can easily generate confusion.

That’s why last Sunday I felt uncomfortable when I heard “e-discovery” and “evidence rules” used in the same sentence.

To me “e-discovery” is related to the discovery of facts from electronic evidence. Letting aside that I am still to find any electronic evidence that is not computer evidence, the term suggests to me activity that PIs perform in order get knowledge of facts. To get knowledge and to construct evidence are not the same thing.

But there’s a second meaning I wasn’t aware of that made all the sense: there is a discovery phase in a lawsuit following US civil procedure. In this pre-trial phase, parties request evidences from other parties. The aim of this phase is to get to an out of court agreement based on the strength or weakness of each party’s case.

Seems it is a good idea… But I have learnt that there’s some stir in the US because of discovery of computer based information (e-discovery). As a good example, you can read this.

And Quinn Smith at “Redefining International Arbitration in the United States: The Application of 1782 to international Arbitration Proceedings Located in the United States” published at Spain Arbitration Review, pages 93-105, provides a good starting point to discovery and arbitration.

I let you mixing both e-discovery with arbitration as an exercise.