Everything You Need to Know About eDiscovery
Nowadays, eDiscovery, or electronic discovery, has become a standard part of the legal process. Before eDiscovery arrived on the scene, during a legal dispute, the parties involved would exchange required information in the form of physical documents. Today, documents and other forms of communication are generated digitally, leading to a fundamental change in the discovery process.
To put it briefly, eDiscovery is the collection, sharing, and reviewing of electronically stored information (ESI) for use as evidence in legal matters. ESI is a term that covers a wide range of digitally created content like emails, text messages, social media posts, Microsoft Word documents, video and audio files, and even company-specific databases.
What is eDiscovery?
The fundamentals of eDiscovery are applied during litigation, investigations, or data privacy and compliance-related disputes.
The term “eDiscovery” is a way to describe the process of discovery, which consists of obtaining and exchanging information or evidence during litigation. However, as the world continues to move towards digital communication, legal professionals are adding the “e” to clearly convey that electronic records are involved. eDiscovery describes the whole process of discovery to address the challenges of collecting, reviewing, and producing information or evidence in the digital world.
Why Does eDiscovery Matter?
eDiscovery is crucial for legal teams to provide comprehensive and competent representation. The Federal Rules of Civil Procedure (FRCP) now include provisions recognizing eDiscovery as an important procedure for civil lawsuits. Common malpractice claims are the result of laziness, bad recordkeeping by the attorney, and ineffectively leveraging eDiscovery tools.
As the scope of ESI intensifies, attorneys must start learning new technical skills that are now more commonly taught in law schools.
In order to reduce costs, legal departments and law firms brought eDiscovery in-house, while in the past, most eDiscovery tasks were outsourced. Leveraging Legal Discovery software like Casepoint saves time and reduces risky data transfers by using one secure, cloud-based platform with role-based security and customization. Users are also able to quickly process, cull, and find important data with easy-to-use technology that’s powered by artificial intelligence. This is beneficial to easily meet deadlines and handle the increasing volume of requests that are related to GDPR, CCPA, CPRA, and other data privacy regulations that are on the rise. Users are able to strengthen overall compliance and data breach response as well.
What is the eDiscovery Process?
Legal professionals can use the EDRM (Electronic Discovery Reference Model) as a starting point, which is a widely accepted definitive framework for the eDiscovery process. The EDRM separates the eDiscovery process into 9 iterative stages:
Information Governance (IG)
When organizations create, collect, and store data, they need to consider how to maintain the data’s security while keeping it private and compliant. Information Governance is focused on getting organizations to create and perform a series of procedures on how they create, store, manage, and secure ESI. This includes the regulatory and legal obligations tied to eDiscovery. Information Governance also has its own model for legal experts to follow, which is called the Information Governance Reference Model (IGRM).
To prepare for litigation, legal teams need to identify and decide what pieces of ESI (Electronically Stored Information) are applicable.
Relevant ESI cannot be altered or destroyed. Usually, this is done via a legal hold that is sent to the custodians of the data, telling them not to delete specific ESI.
ESI should then be collected for processing and review with no alterations to the ESI. It is an integral step to keep the chain of custody intact, in order to maintain legal defensibility
The collected ESI is prepared for the attorney to review and analyze. This is done by pulling out and extracting metadata and text from the files. It narrows the size of he collection by stripping out commonly agreed-to system files and is usually referred to as de-NISTing the data (NIST is an official list published by the federal government). Legal professionals use specialized software in order to help reduce the volume of data.
The review stage involves evaluating the ESI for privilege and relevance. Utilizing software for this process can significantly help distinguish between relevant and non-relevant documents.
After reviewing the documents and data, the next step is to produce relevant ESI as evidence, following the court procedure and rules.
The final step is presenting ESI as evidence in a trial or deposition.
While it may be complex and arduous at times, the eDiscovery process is still an unavoidable part of a larger legal process. Attorneys can’t afford to lag behind, especially if the consequences are as severe as malpractice complaints or a reduction in profits for their organization. Attorneys must take the time to review relevant materials using eDiscovery solutions, and become proficient with the EDRM model.
Common eDiscovery Challenges
eDiscovery can be a challenging process even for the most experienced attorneys. Volumes of data are steadily increasing day by day, so it is essential that your eDiscovery solution can scale and handle large data volumes efficiently. For example, in a recent patent dispute, Samsung collected and processed around 3.6 terabytes of data (11,108,653 documents) in a case against Apple Computers. The cost to process that evidence was more than $13 million dollars during a 20-month period. With a good eDiscovery solution that has advanced filtering and intelligent Early Case Assessment, you can chop down large data sets into digestible sizes for efficient use of time and money.
While this case is an extreme example, eDiscovery is a necessity for handling matters of all different sizes. Digital evidence plays an increasingly important role in every type of law, including criminal, corporate, and civil investigations. As interactions become increasingly digital, everyone leaves a trail of electronic evidence that tracks your every move, which then becomes available for discovery.
The increase in discoverable data is not likely to slow down in the future, but creative and modern legal teams are discovering new ways to introduce simplicity and cost savings to the discovery process.
In addition to increasingly large data volumes, there are new files and data types being introduced due to advances in technology. Your eDiscovery solution should be able to process data in its various formats in one place. When looking for an eDiscovery provider, ask if they can process difficult data types or file types like audiovisual files or AutoCAD diagrams.
Since legal discovery in the public sector can involve multiple parties and agencies, the need for collaboration is a must. eDiscovery solutions should accommodate that need for today’s multi-party matters and extensive work environment. Involved parties should be able to access a matter as needed, while also maintaining different permissions as per role requirements.
Simplifying the eDiscovery Process With Technology
Prior to the digital era, attorneys who conducted document discovery would meet with their clients, gather physical documents, and begin reviewing them.
Fast forward to now, and the eDiscovery process looks a bit different. As mentioned, Legal Discovery software simplifies the discovery process by making it more efficient and reducing associated costs. Legal Discovery software allows legal professionals to manage electronic documents during litigation and investigations. These solutions can automate common discovery steps like data ingestion, OCR (optical character recognition), file indexing, virus scanning, preparing documents to be reviewed and produced, and more.
Once the data is loaded into a platform, legal teams can start reviewing it. They can create searches to find relevant or key documents, sort information by metadata fields like creation date or author, and apply tags to indicate information such as responsiveness, privilege, or legal issue.
Legal Discovery software can drastically reduce the number of documents that need an eyes-on review by allowing teams to quickly cull out extraneous files, such as duplicate files or information outside the scope of the review. Leveraging this technology helps legal teams focus on the most important data, giving them more time and resources to dedicate to case strategy. Once the data is culled, reviewed, and tagged, the software can Bates stamp documents, burn-in redactions, and automatically create productions that can be securely shared with other parties.
Legal Discovery software that is cloud-based has the added advantage of making it possible to upload, review, and produce documents without delays, added costs, or frustrations associated with other eDiscovery approaches like manual review, legacy software, or third-party vendors.
eDiscovery is a primary way to uncover facts in a dispute. In the past, parties used to exchange paper documents that often came in hundreds and hundreds of boxes. Nowadays, paper documents are largely replaced with computer-generated content and the process of discovery has been changed forever.
ESI now encompasses emails, social media, cell phone data, video recordings or digital audio, global databases, apps, data stored in a household appliance, and even onboard computers in a car, or any of the hundreds of digital records that are produced by the average person on any given day.
Today, legal experts have access to more information about a matter than ever before, but with robust Legal Discovery software, everything can be managed in a simplified manner for easy access during a hearing. The information used in eDiscovery can be the key to winning a case, so it’s best if you have all the necessary information or evidence in one place.
If you want to save time and get better results faster, investing in an eDiscovery solution can go a long way. With cloud-based legal discovery software by your side, you can upload, review, and produce documents online seamlessly without any complications or infrastructure and operational overhead.