E-discovery and digital forensics are two distinct and nuanced concepts that are often conflated in the world of legal technology. While both fields converge in their utilization of digital data and may overlap once litigation is instituted, their applications, methodologies, and implications in legal proceedings significantly differ.

E-Discovery is by its nature employed once litigation (or arbitration, under some rules) has commenced; digital forensics implicates the prelitigation obligation of preservation, as discussed below, and perhaps other aspects of the discipline which may come into play for pre-litigation mediation or other forms of alternative dispute resolution.

Take, for example, the hypothetical situation of a key employee (“Former Employee”) leaving Business A to start a competing business, Business B. As soon as competing business enterprise Business B or Former Employee are put on notice that Business A may dispute some aspect of Former Employee’s actions in leaving Business A or engaging at Business B, Digital Forensics must come into play to identify, preserve and maintain certain electronically stored information of all concerned. Early mediation efforts may take place pre-mediation with the sides, separately or together, utilizing a digital forensics expert to review hard drives or phones to determine whether information has been accessed, downloaded or deleted. In our hypothetical, it is not until either litigation or arbitration permitting discovery commences that eDiscovery may come into play, potentially overlapping with Digital Forensics activities. Following below is a more expansive discussion of each. Understanding the roles and characteristics of these two critical facets of legal practice can aid legal professionals in managing the technical aspects of legal proceedings more efficiently and avoid costly pitfalls. This article provides an overview of the defining features of e-discovery and digital forensics and how they are used in distinct ways in the legal field.