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eDiscovery 101

An Electronic Discovery Primer

eDiscovery is the process for identifying and reviewing key litigation documents stored in an electronic format

An Electronic Discovery Primer

eDiscovery (also known as e-discovery, ediscovery, e-Discovery or Electronic Discovery) is the electronic facet of identifying, collecting, processing and producing electronically stored information (ESI) in response to a document request in a lawsuit or investigation. Discovery is the term used for the initial phase of litigation where the parties in a dispute are required to provide each other with relevant information and records, along with all other evidence related to the case.

In the process of electronic discovery, data of all types can serve as evidence. Examples of ESI included in eDiscovery are emails, attachments, instant messaging chats, social media, text, voicemail, audio and video files, documents, accounting databases, spreadsheets, Web sites, and any other electronic information that could be relevant evidence in a lawsuit.

Email can be an especially valuable source of evidence in civil or criminal litigation, because people are often less careful in these exchanges than in hard copy correspondence such as written memos and reports.

Also included in eDiscovery collections are “raw data” and “metadata,” which forensic investigators and document reviewers can examine for specific identification of possible evidence. Metadata is information about a particular data set which describes how, when and by whom it was collected, created, accessed, modified and how it is formatted.

Some metadata, like file dates and sizes can easily be seen by users in a native format. Other metadata is generally more hidden or is embedded and unavailable to computer users who are not technically adept. Metadata is generally not reproduced in full form when a document is printed, but in its native format, the metadata can provide rich details that become important during litigation.

Context is important in understanding the true meaning of words and documents. Metadata is the context information for Electronically Stored Information (ESI). While metadata may not be important in all litigation, you generally don’t know that upfront when you are gathering the documents and other forms of communication. It is much easier to require that metadata be provided during the discovery process, rather than trying to match it up to data at a later time.

Paying attention to the mechanics of how, when and where your EDI is collected and assuring its preservation is important. Preserving the original content and metadata for electronically stored information is required in order to eliminate claims of spoliation or tampering with evidence later in the litigation. Even if it does not turn out to be direct evidence; this information is helpful to the electronic tools that counsel will use to filter, sort, prioritize and evaluate ESI before it is produced.

The processes and technologies around e-discovery are often complex because of the sheer volume of electronic data produced and stored. The following represents a summary version of steps that should be taken by parties:

  1. Attorneys from both sides determine the scope of discovery, identify the relevant ESI, and make eDiscovery requests and challenges.
  2. During the “Meet and Confer” process required by the Federal Rules of Civil Procedure, search parameters can be negotiated with an opposing counsel or auditor to identify what is being searched and to ensure needed evidence is identified and non-evidence is screened out. This reduces the overall effort required to search, review, and produce information.
  3. After data is identified by the parties on both sides of a matter, potentially relevant documents (including both electronic and hard-copy materials) should be placed under a legal hold. A legal hold means that the information cannot be modified, deleted, erased or otherwise destroyed.
  4. Potentially relevant data is then collected, extracted and processed so that indexes of contents can be placed into a database.
  5. Once in a database (usually within an eDiscovery platform), data analytics are used to further cull or segregate the clearly non-relevant documents and e-mails.
  6. The data is then hosted in a secure environment and made accessible in a review platform so reviewers can tag the documents for their relevance to the legal matter (contract attorneys and paralegals are often used for this phase of the document review).
  7. For production, the relevant documents are often converted to a static format such as TIFF or PDF, making redaction of privileged and non-relevant information possible. Other documents may be produced in their native format.
  8. The use of Technology Assisted Review (TAR), predictive coding and other analytic software for e-discovery reduces the number of documents required for review by attorneys, and allows the legal team to prioritize the documents it does review. The reduction in the number of documents cuts hours and thus costs.
  9. The ultimate goal of eDiscovery is to produce a core volume of evidence for litigation in a defensible manner.

An eDiscovery platform is a unified and complete software system that enables enterprises, governments and law firms to manage legal, regulatory and investigative matters using a single software platform. It provides an interface to collect, process, cull, review and produce important documents that need to be reviewed.

An integrated platform will ensure that your organization is ready to respond effectively and efficiently to both a growing compliance workload and an increase in litigation. When a platform includes automated workflow options, all legal and compliance issues can be easily handled with a minimum of manual interface.

An eDiscovery platform allows users to:

  • Manage all eDiscovery matters with a single, powerful, easy-to-use application
  • Deploy legal hold obligations in a defensible manner.
  • Accelerate Early Case Assessment and Early Data Assessment from weeks to hours or days.
  • Cull responsive document databases to 10-15 percent of original data size.
  • Provide case management dashboard/analytics to control all aspects of a case, including budgeting and resource allocation.
  • Eliminates the need to move data from one place to another. Once it is ingested into a complete eDiscovery platform, all the needed analysis is completed on a central database.