eDiscovery Issues Glossary

Visualize and understand ediscovery issues with our Issues Dashboard. Our unique tagging structure focuses on the context and application, not just mere appearances of terms, enabling faster, more relevant research. Below is a list of all issues used in the eDiscovery Assistant platform and their definition. 

Click on the + sign to see the full definition. 

This Code section empowers a district court to order a person who either ‘resides’ or ‘is found’ in the court’s district to ‘give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal.’ This issue is applied to decisions seeking discovery under this Code section.

Rule 30(b)(6) provides for the taking the deposition of a corporate entity through a designated representative on topics specified in a 30(b)(6) deposition notice. Rule 30(b)(6) requires that the notice of deposition to a corporation party be served on the corporation and sets out the matters for examination with particularity. This Issue is applied when this rule is invoked and issues are considered related to the deposition, including when a party seeks or has challenges with the corporate designee put forth by a party, responses or questions to be asked.

An adverse inference is an instruction to a jury that a party has spoliated evidence and that the jury is allowed to find that the evidence would have been unfavorable to the spoliating party. This issue is applied when a party argues for, or a court rules on whether an adverse inference is a proper sanction for spoliation or other misconduct in discovery.

The volumes of ESI in discovery mean identifying and marking documents as privileged is time consuming and expensive, leading rules to be developed (FRCP 26, FRE 502) that can protect the inadvertent disclosure of privileged information. This issue is added where a party argues for or a court addresses whether the attorney-client privilege applies. Use this Issue in connection with related issues to create an effective search.

The Attorney Work Product doctrine permits attorneys to withhold documents and other tangible items from production that were prepared in anticipation of litigation by or for another party or its representative. This issue is applied when a party argues, or the court rules on, the applicability of the doctrine in discovery.

An audio file is a record of captured sound that can be played back. Sound is a sequence of naturally analog signals that are converted to digital signals by the audio card, using a microchip called an analog-to-digital converter (ADC). Any digital information with speech or music stored on and played through a computer is known as an audio file or sound file; one of the most common types of audio file formats used today is the MP3. This issue is applied when audio files are at issue in the decision before the court.

Authentication refers to a rule of evidence which requires that evidence must be sufficient to support a finding that the matter in question is what its proponent claims. The "authenticity" rule relates to whether the subject of an evidentiary offering (generally a tangible thing), is what it purports to be. This Issue is added anytime a party argues, or the court addresses or rules on the authentication and admissibility of ESI and should be searched in combination with the Issue for the source of ESI sought to be authenticated.

Bad Faith is an intentional dishonest act by not fulfilling legal or contractual obligations, misleading another, entering into an agreement without the intention or means to fulfill it, or violating basic standards of honesty in dealing with others. This Issue is applied when a party argues, or where court finds or considers an analysis of bad faith for sanctions for discovery misconduct.

A recording device which is standard equipment in certain vehicles that records, constantly and automatically, certain data about the operation of a vehicle and is often used to determine speed or other variables at impact in a collision. This Issue is applied when data from a blackbox is implicated in a decision.

A clawback provision, as expressly permitted by Rule 502(d) of the Federal Rules of Evidence, allows parties to recover inadvertently disclosed privileged information, without being held to have waived attorney-client privilege or work product protection. This Issue is applied when a clawback provision is at issue, or the court discusses the use or enforceability of a clawback provision in discovery.

Cases addressing discovery related to ESI in the cloud, meaning that data is stored on servers hosted in a location not owned by a party, also called SaaS. Examples of cloud computing include webmail, webchat, CRM platforms, project management platforms, geofencing, web browsing history, etc.

Added to content addressing the issues of whether counsel has the requisite competence in handling discovery of ESI or acts outside the rules and counsel's professional responsibilities.

Where the court considers cooperation of counsel to be at the heart of a case and orders it. Will find it alot in 7th Circuit pilot project cases.

Used when parties argue and courts rule whether a losing party is responsible for costs and fees of electronic discovery, or when costs and fees are awarded on a motion.

When a party argues or the court orders that the non-producing party should pay costs for the discovery of ESI.

Added to all content in which the proceedings are criminal in nature.

Added to content involving issues related to a data breach.

Added to content where a court considers or rules on default judgment as a sanction for misconduct in discovery.

When an attorney has disciplinary action taken against him or her for failure to meet their obligations in discovery.

Included as an issue tag when a court considers, or orders, the dispositive action of dismissing a case as a sanction for discovery related misconduct.

Email threading refers to the process of organizing and grouping related email messages within a collection of electronically stored information (ESI) to facilitate the review and analysis of these emails during legal investigations or litigation. There are multiple technical and legal issues with email threading, and this issue tag is applied to content in the application that discusses or analyzes those issues including how they are produced and included on a privilege log.

An emoji is a small digital image or icon used to express emotions, ideas, concepts, or reactions in electronic communication and digital messaging. Emojis in eDiscovery can pose unique challenges and considerations because they are a form of non-verbal communication and can carry various meanings or emotions. This issue tag is added to content involving the use or interpretation of emojis and their relevance in discovery.

Added to content in which ephemeral data, which allows users to set their data to automatically disappear, is at issue in a dispute, or how to plan for and deal with the discovery of ephemeral data.

The ESI Protocol, or ESI Order, refers to the negotiated document that defines how the parties will handle the issues associated with ESI in a matter. Content tagged with this issue discusses specific provisions of, or the enforceability of the ESI Protocol, what should be included in an ESI Protocol or how to think through drafting a working document.

Added to content that discusses the ethical issues in discovery, regardless of jurisdiction.

Added when content discusses the exclusion of evidence as a sanction for discovery misconduct, as well as circumstances that may lead to such a sanction.

Added when content discusses the exclusion of a pleading as a sanction for discovery misconduct, as well as circumstances that may lead to such a sanction.

Added when content discusses the exclusion of a witness as a sanction for discovery misconduct, as well as circumstances that may lead to such a sanction.

Added to content when discovery is sought from the social media platform Facebook. This does not include content when Facebook's parent company is implicated.

Facial recognition technology works by identifying and measuring facial features in an image or video. This tag is added to content analyzing the use of facial recognition technology in all contexts.

Used when party does not keep information relevant to case, or Judge rules there was failure to preserve data as required by rules.

Used when a court finds, or an argument is made that a party has not produced information that is relevant to the case in accordance with the governing rules for that jurisdiction.

Added to content that addresses discovery of ESI under the Federal Freedom of Information Act (FOIA) or state or administrative open records or sunshine laws.

Applied to content that discusses the need for translating foreign languages in discovery, or issues arising from translation of foreign documents.

Issue added to content in which either a party requests or the court orders a forensic examination or forensic analysis of hardware or mobile devices for the purposes of discovery.

When a party argues or the court rules that a party should/should not produce ESI in a particular form.

Cases considering the application of or an order under Federal Rule of Evidence 502(b).

Cases considering the application of or an order under Federal Rule of Evidence 502(d).

Where a party argues or the court rules that a party has waived objections by making only general or boilerplate objections; these general or boilerplate objections can appear in a section titled General Objections at the beginning of the responses to written discovery requests or in a response to an individual request. General or boilerplate objections do not specifically indicate why a request or interrogatory is problematic to respond to, rather they are broad brush such as vague and ambiguous or not proportional to the needs of the case.

Added to content when data from a Global Positioning System (GPS) is at issue in discovery.

Refers to the issues involved in seeking discovery under the Hague Convention, a treaty that establishes a procedure under which each contracting state designates a "central authority" to receive and review incoming "letters of request" for taking evidence in that country. In the United States, the federal courts can issue letters rogatory for the discovery of ESI if the request complies with the requirements of the convention.

Hearsay is an out-of-court statement offered to prove the truth of whatever it asserts, which is then offered in evidence to prove the truth of the matter. This issue is added to content whenever a statement is alleged as hearsay or hearsay is argued in content.

These are links contained within an email, instant message or other format that direct a user to a related document. These occur in collaborative applications, chat platforms or web based email services like Google Mail and Microsoft Exchange online email. This issue is applied when the discovery of the data at these pointers or hyperlinks is requested, included in an ESI protocol, or analyzed by the court.

When a court rules on whether data is inaccessible as that term is used in Fed. R. Civ. P. 34.

When a court orders in camera review of ESI or rules on a request from a party for the court to examine documents and rule on whether they should be produced.

This tag is added when content discusses or analyzes a party's obligation to produce information as Initial Disclosures in accordance with Rule 26(a) of the Federal Rules of Civil Procedure or its state equivalent.

Added to content that addresses discovery of ESI from the social media platform Instagram, owned by Meta.

Use of instant messaging or chat functions that may be collected and used as evidence that can be shared on any internet connection and received on any computer or device depending on the platform. Distinguish instant messaging from text messages, which require a cellular connection and are only sent to mobile devices.

Added to content discussing the network of physical objects that are embedded with sensors, software, and other technologies for the purpose of connecting and exchanging data with other devices and systems over the internet. Objects may include wearables (rings, watches, etc.), GPS, etc.

Added to content that addresses whether a party put a legal or litigation hold in place, the timing or scope of the hold, or the reasonableness of a party's actions surrounding the hold.

Cases that mention or allow for the discovery of ESI from LinkedIn.

Added to content that describes how produced data is physically organized and produced. This includes 1) whether data is produced by request or in the manner in which it stored in the ordinary course of business under FRCP 34 and 2) how data is physically provided to the other side — by fileshare or physical drive.

The complexity of dealing with medical records presents its own issues in discovery. This issue is applied whenever medical records are sought or at issue in discovery and includes any and all types of information in medical records.

Added to content where metadata, the individual fields of information about ESI, is discussed or implicated in discovery.

Refers to any device, other than a computer, on which a party can create, store, send or receive ESI that may be implicated in litigation or contains data subject to a duty to preserve. The issue is added to content that deals with ESI contained on mobile devices and the discoverability of data from them.

Applied where content is at issue from Microsoft's Teams collaboration platform, whether the content is email, messaging, calendar based, or file and app sharing.

Added to content that addresses the discovery of ESI from MySpace, a legacy social media platform.

Refers to the format in which ESI is created, and is expressed as file extension at the end of the file name, e.g. .docx, .csv, .xls. This issue is added to content that discusses whether native format is available or discoverable and how and whether it should be provided.

Cases dealing with issues specific to open records laws or FOIA.

This issue is added to content in which discovery of images or photos is at issue, regardless of the location of the data — i.e. on mobile device, social media, in chat apps, etc.

Added to content that addresses whether a party has possession, custody or control as defined in Rule 34 of the Federal Rules of Civil Procedure.

Decisions that consider the use of predictive coding for document review in discovery.

Cases where privacy considerations are discussed or weighed in the decision.

A Privilege Log is a document, usually in table format, that describes documents or other items that have been withheld in a civil lawsuit as subject to the attorney-client privilege. The requirements for what must be included in a privilege log are set out in FRCP 26, or in the state equivalent rule. This issue is added to content that addresses whether and when a privilege log is required, whether documents on a log may be withheld, or whether the provided log is appropriate.

When a court discusses and invokes the notion that the cost of electronic discovery should not outweigh the potential benefits of it including the value of the case at hand.

In discovery, a protective order is entered into by the parties and signed off on by the court to prevent the disclosure of sensitive information except to certain individuals under certain conditions. Check your jurisdiction to ensure the court will permit a protective order. Content that addresses or interprets protective orders in discovery will have this issue tagged.

Redaction is the process by which sensitive information or PII (personally Identifiable Information) is fully removed from disclosed records, whether those records are being disclosed in discovery, in a court filing, in response to an open records law request, or otherwise. The issue is added when redaction is discussed or advocated in content, whether by a party or a court reviewing materials in camera.

When court orders or parties agree to conduct discovery on a subset of ESI, or a sample set, rather than the entire body of data that may be relevant.

When a court imposes sanctions on a party for some failing in electronic discovery. Should also include the reason for sanctions as a tag.

Applied when content discusses the date range, number and identity of custodians, sources of ESI or other factors that determine the full scope of preservation that must be made in a particular matter and how that scope is decided.

Added to cases that discuss what ESI is covered under a warrant issued by a court and why it is or is not discoverable.

Added when content discussed a search and seizure of evidence under the 4th amendment to the US Constitution.

Issue is added to content in which the court or parties discuss the use of search terms as a method to cull large data sets for review.

Added to content that discusses when custodians, not counsel, identify, preserve, collect and provide ESI to counsel for production. This issue covers whether counsel have provided the appropriate supervision for a witness to make decisions about the scope of data to be collected as required by the governing rules in that jurisdiction.

Signal is an app for instant messaging, voice and video calls with end to end encryption. Users of the app can sending instant messages, voice notes, photos, videos and other files to an individual or a group. This issue is added when data from Signal is requested or analyzed in discovery.

Added to content in which ESI from Skype, an instant messaging platform, is implicated.

Added to content that implicates data from Slack, an instant messaging platform, in discovery.

Added to content where data from Snapchat, an ephemeral messaging platform, is at issue in discovery.

Added to content in which discovery from any social media platform is sought or otherwise implicated. This issue does not include when a social media platform is a party to a case.

Source codes are relevant to eDiscovery because courts have to balance allowing discovery of relevant information with the public policy that a business's competitive advantage and enormous man-hour investment could be destroyed by allowing this proprietary information to be revealed through litigation.

Use with cases where special master is appointed or a decision of a special master is at issue.

When a party is accused of or found by the court to have destroyed information that would have been relevant to the case.

Added to cases where the Stored Communications Act is at issue, usually as a defense to having to produce content created by third party users.

Use of computer hardware and software to improve the document review step of the eDiscovery process. May also be referred to as computer-assisted review, computer-aided review, predictive coding, or content based advanced analytics among other terms.

Cases and other material where text messages — a message sent from one mobile device to another — are at issue. Be sure to distinguish text messages from instant messaging, as they are two different sources of ESI.

Cases where discovery is sought from a third party or a non-party under a subpoena.

When a case specifically mentions Twitter or there is information to be gathered from the social media site.

Added to content when video evidence is at issue and can include video on a specific platform, including social media.

Added to content in voicemail messages are at issue and can include both capturing the data as well as handling it in the discovery process.

Added to content where waiver of any privilege is implicated in discovery.

This issue tag is added when data from a wearable device is at issue and may include fitness bands, watches, rings or any device that is worn by a person and captures data.

Added to a case when the decision involves discovery from the instant messaging app of the same name.

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