What is Electronic Discovery? Electronic discovery (eDiscovery) is the process of identifying, collecting and ultimately producing electronically stored information as a response to a request by a lawsuit or an investigation.
How Does eDiscovery Work?
eDiscovery is ideally a process that’s composed of many linked actions. The process is usually set in motion as soon as a litigation is likely, triggering the legal duty to preserve all the potentially relevant ESI. Once the scope parameters have been set, the data is collected, analyzed, and then formatted to be used in the court. But don’t let this rather simplified description fool you. The e-discovery process is a complex, dynamic process that can challenge even the most technical and experienced legal minds.
Why is eDiscovery Important?
Although it may not evoke the scene of lawyers that battle it out before a jury in a court of law or at the helm of any school of law’s syllabus, e-discovery can be critically important in the legal process. eDiscovery serves a crucial function in the justice system and these functions have become more formalized. The knowledge of the eDiscovery process is becoming an increasingly important part of the sacred duty of an attorney to offer competent information and representation. The need for eDiscovery competency will only grow in the near future as our lives move increasingly online. The field of law now fundamentally depends on the understanding of eDiscovery. The progression of eDiscovery has added a number of responsibilities and tasks for legal professionals which is why having a relationship with Barrister Digital Solutions is critical to case teams.
The Process of eDiscovery
The eDiscovery process is fundamentally based on the Electronic Discovery Reference Model (EDRM). This model is so universal that it practically functions as the moniker for the whole e-discovery field. The EDRM model has 9 distinct stages, all of which highlight the sequential and the iterative nature of the activities in the eDiscovery process. The EDRM workflow ranges from process-centric stages, which include identification, information governance, collection, and preservation, to the mroe data centric phases, including the review, processing, analysis, presentation, and production.
1. Information Governance (IG): This is a set of multi-structures, procedures, policies, processes, and controls that are implemented to manage the information of a company. The notion that information governance is usually included as a distinct stage in the e-discovery process is misunderstood. But in reality, the eDiscovery process is not part if IG, nor the other way around. That said, IG is an important part of the foundation of eDiscovery, since it essentially drives all of the other stages.
2. Identification: When litigation becomes foreseeable and reasonable, the parties involved are required to preserve the relevant ESI data. But before they start preserving anything, they need to determine what’s relevant first. The eDiscovery teams will need to use different methods to find the best sources of relevant data, including interviewing key players, reviewing case facts, and assessing the environment of the data.
3. Preservation: When the relevant data has been identified, it has to be protected and preserved from any form of spoliation. Although there are many other ways of preserving the data, one of the most common ways is through a legal hold. This entails formal communication that is sent from the legal team to the relevant owners of the data, known as custodians, instructing them not to delete particular parts of the ESI.
4. Collection: Ultimately, relevant data needs to be gathered and centralized. The most important thing to know about the collection process is that whatever approach is used, it needs to be legally defensible.
5. Processing: This stage entails the preparation of the collected data for the analysis and review by the review or case team.
6. Review: The review stage involves evaluating the data for any relevance and client/attorney privilege.
7. Analysis: At the highest level, this stage deals with the evaluation of data for context and content, taking into consideration key patterns, people, topics, and discussion. EDRM professionals agree that although analysis might appear on the EDRM framework after the review process, it is usually deployed in most stages of e-discovery.
8. Production: The data that has been determined relevant needs to be produced for use as potential evidence in the case. The eDiscovery process has rules that address how the documents should be produced.
9. Presentation: This step is concerned with how the electronic evidence is displayed as evidence in the case. The entire presentation process has evolved dramatically since the shift from the paper based evidence to the predominantly electronic evidence has begun. Nonetheless, the presentation is mainly based on the post-discovery stages.
Early Case Assessment (ECA)
Unlike the other eDiscovery processes that are centered on some specific set of actions, like collection, preservation, and review, the ECA is more dynamic, involving a number of different strategies and approaches that might change from case to case. The ECA process attempts to quickly surface the key data and other potential evidence. Data collected from early cases assessment is then utilized in the estimation of risk and to guide the case strategy. Effective ECA strategies usually seek to answer questions like:
• How much relevant data is available? • What are the main search terms and keywords relevant to these issues? • How much would the complaint potentially cause in eDiscovery costs? • Are there key files or documents that need to be accounted for?
The ECA process involves the following steps:
- Custodian Interview: This entails direct communication with the custodians to get the full idea of the scope of the matter. This helps you determine exactly who’s involved, how much data is involved, where the important documents are, etc.
- Data analytics: This is a key step in the ECA that involves turning raw data into useful information. Data analytics help the legal teams to generate reports that capture custodian names, data volumes, email domains, date ranges, and other insights in large sets of data. As such, they have both a quantitative function (how much?) and a qualitative one (where’s the smoking gun?). As a result, it helps make informed decisions on the best course of action.
- Data Sampling: The process assumes that when a representative subset of important document are studies, accurate conclusions about the whole data set can be drawn. With eDiscovery, this entails examining a small set of documents to look for relevancy, and to determine how many documents are relevant across the whole data corpus. This can be a very effective tool in eDiscovery if it’s done correctly.
- Reporting: These are critical to the ECA, since they help to make sense of all details. Through dashboards and reports, you can digest the key trends, figures, and other actionable information more easily. For instance, a report may reveal that the eDiscovery burdens and costs outweigh the monetary value of a case. This is a fact that can be missed when looking at the data in a more granular level. In addition, reports are much easier to share and export over to other parties or the judge.
As mentioned earlier, the legal hold process is a notification that’s typically sent from the legal team of an organization to the employees essentially instructing them not to delete any data or discarded paper documents, which could be more relevant to an imminent legal case. however, there is much more that goes into a proper defensible process. When’s the best time to send a legal hold? The legal hold process is ideally your first line of defense against the deletion of important document. As such, it should go out immediately after the litigation has started, or reasonably anticipated. Who should send out the legal hold? Many companies do deal with dozens, if not hundred of active litigation issues. Each of these has at least one legal hold that is associated with it. The management of these processes can create full time jobs, which are typically shared among a team of people. Who is the Legal hold sent to? A Legal Hold communication should be sent to a person who possess any potentially important or relevant information regarding the data. The list is not static, since the legal teams will continually uncover more details about the case. This means the list of custodians will evolve continuously, and in some cases, new people might be added onto the hold. What is Contained in the Legal Hold? No specific legal requirements exist on what information should go with a legal hold notification as of the date of this writing. Nonetheless, an effective legal hold communication needs to clearly and succinctly establish the exact data and paper documents that should be preserved, the underlying issues of the matter, and other things like dates and names. It should also include a clear legal urgency or necessity to include an easy way for the custodians to contact the legal team in case of any questions or concerns.
As more corporate and government legal departments are under pressure to lower their operational budgets, organizations are continually looking for ways to do more with less. eDiscovery is a field where organizations can reduce costs, increase efficiency and make budgeting more predictable by working with the right partners. BDS can provide consulting and guidance with cases ranging from simple to the most complex challenges involving eDiscovery and litigation. Contact us today to learn how we can help you.