I’ve continued to observe people equating “litigation” and “eDiscovery”, so I thought a post separating eDiscovery from litigation was in order.

In several meetings, I’ve heard even experienced eDiscovery professionals use the terms “litigation” and “eDiscovery” interchangeably, such as “in addition to the need for eDiscovery, we need to think about investigations and incident response”. C’mon man!

Soapbox statement: eDiscovery is a discipline which can be applied to several different use cases, including (but not limited to) litigation.

Case in point: During the last two eDiscovery Today State of the Industry Report (SOTIR) surveys (here and here), I’ve asked “to which use cases do you or your organization apply eDiscovery technology and workflows today? (select all that apply)”. In each survey, seven use cases were identified as being applied by at least 40% of survey respondents. For 2024, at least 40% of 444 respondents to the survey were applying eDiscovery to Investigations (82.0%), Incident Response (50.7%), Arbitration (48.6%), Privacy Requests (46.4%), Government Information Requests (43.5%) and HSR Second Requests (40.1%), in addition to Litigation (95.7%). Only Information Governance (35.6%) and Audits (32.0%) failed to crack 40% (but weren’t far off). eDiscovery is not just for litigation anymore.

Want even more? I thought my list was pretty comprehensive, but (on a whim), I thought I would ask ChatGPT for its list of eDiscovery use cases other than litigation. Here’s what it came up with as “notable non-litigation use cases where e-discovery technology can be effectively applied”:

• Internal Investigations, including Corporate Compliance & Misconduct Investigations and Regulatory Compliance Investigations.
• Regulatory Responses and Audits, including Regulatory Requests (e.g., SEC, FTC, DOJ) and Financial Audits and Reporting.
• Data Subject Access Requests (DSARs)
• Mergers & Acquisitions (M&A) Due Diligence, including Document Review for M&A and Post-Merger Integration.
• Corporate Governance & Records Management, including Information Governance Programs and Data Retention & Defensible Deletion.
• Incident Response & Cybersecurity Investigations, including Data Breach Response and Forensic Investigations.
• Risk Management & Compliance Monitoring, including Proactive Risk Assessments and Contract Management & Compliance Audits.
• Freedom of Information Act (FOIA) Requests
• Intellectual Property (IP) Management, including Patent & Trademark Portfolio Management and Licensing & Royalties Audits.
• Employee Departures and Exit Interviews, including Preserving Data During Departures and Non-Compete/Non-Solicitation Enforcement.
• Crisis Management & Reputation Protection, including Public Relations Investigations and Whistleblower Claims.
• Corporate Training & Policy Enforcement, including Monitoring Employee Compliance with Training Programs and Policy Violation Detection.

And I’m not even sure that’s a fully comprehensive list! Here’s a link to the full answer with descriptions of each.

When eDiscovery became a “thing”, it evolved from the discipline that was “litigation support”. Many people who’ve been in the industry 20+ years probably considered themselves to be litigation support practitioners before most of the evidence became electronic and eDiscovery became the term associated with much of what we did as lit support practitioners. Support of the discovery process for litigation is where eDiscovery was born.

But eDiscovery has grown up now. eDiscovery technology and workflows are clearly being used for much more than litigation today. The industry has spoken, per the last two SOTIR surveys.

My point is simple: we must start separating eDiscovery from litigation in terms of how we refer to it. They are not the same. And we need to keep other use cases in mind when doing things like educating the industry, creating a new EDRM 2.0 model, and more.

So, what do you think? Do you have trouble separating eDiscovery from litigation? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4o’s Image Creator Powered by DALL-E, using the term “robot holding a ball in each hand with the first ball showing the word ‘Litigation’ and the second ball showing the word ‘eDiscovery’”.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.