In the discovery process in litigation, parties must exchange documents deemed relevant or responsive to the matter at hand. In an investigation, the party under investigation must provide relevant or responsive documents to the requesting one. The goal is to find potential evidence that could be used in litigation or criminal proceedings.
In today’s world, documents are no longer stored in file cabinets. They are on mobile devices, in emails, social media, servers, desktops and laptops, audio and video files, messaging applications, and other sources of electronically stored information (ESI). This is where eDiscovery comes in.
So, what exactly is eDiscovery?
Electronic discovery, or eDiscovery, is the process of identifying, collecting, reviewing, reviewing, and producing ESI in response to a request for production in a lawsuit or investigation. (The “e” in eDiscovery means that the majority of documents in ligation and investigations now originate and are stored in electronic format).
With traditional discovery rules and processes for paper-based documents out of synch with the high volume of ESI that is created on a daily basis, in response the federal courts amended the Federal Rules of Civil Procedure (FRCP) in 2015 to focus on, and clarify rules specific to, eDiscovery.
Why is eDiscovery in legal important to practitioners? Simply put, discovery is virtually impossible to achieve manually, especially where cost and time are major factors.
What makes eDiscovery in legal challenging?
The processes and workflows around eDiscovery are often complex because of the three Vs of big data: greater variety, increasing volumes, and more velocity.
Greater variety: ESI is found in many heterogeneous sources of data, ranging from structured data in traditional databases to unstructured data sources such as email, chat, and social media. In eDiscovery, different types of potentially relevant ESI must be brought together.
Increasing volumes: The volume of data created, captured, and copied is expected to grow to more than 180 zettabytes. (A zettabyte is equal to one thousand exabytes, a billion terabytes, or a trillion gigabytes). The growth in data translates into higher volumes of ESI involved in eDiscovery—with individual cases often involving tens of Terabytes of data.
More velocity: A massive amount of new ESI is created every day, thanks to the exploding number of channels that employees use each day—from email and mobile to social media, messaging tools like Microsoft Teams and Slack (which took off as a preferred form of communication during the COVID-19 pandemic), collaboration platforms, and even the Internet of Things.
What are the processes involved?
The Electronic Discovery Reference Model (EDRM) provides a conceptual framework for eDiscovery in legal. Today, many eDiscovery teams use the EDRM to guide their eDiscovery processes. While the EDRM is depicted as a linear workflow, eDiscovery is a continuous process, with interdependent stages that often run concurrently.
Source: Current EDRM Model – EDRM
Identification: The identification phase entails locating the ESI within the organization that needs to be preserved for litigation purposes. Typically, interviews are conducted to pinpoint sources of ESI that are most likely to be significant or valuable to the case.
Preservation: The potentially relevant or responsive information identified must be safely stored so that it remains intact and available for eDiscovery. Failure to promptly preserve data provides organizations with an opportunity to spoliate (tamper or destroy) potential evidence. A standard approach to protecting ESI is to place data on legal hold to “freeze” it and forbid individuals from deleting it.
Collection: Following identification and preservation, legal teams gather it for eDiscovery use, collecting it from sources in a legally defensible way so its authenticity cannot be doubted. With expanding and increasingly complex data sources, industry-leading digital evidence collection and forensics tools, such as Cellebrite, Oxygen, Pagefreezer, and Magnet Axiom Cyber, can aid in the collection of data from mobile devices, IoT, websites, social media, and the like.
Processing: This refers to the preparation of collected data for review by attorneys and managed document review teams. Processing involves “cleaning” and filtering the data by deleting non-relevant ESI, deduplicating files through file hashing, OCRing documents that may not be searchable at the time of collection (e.g., images), and text extraction to make the documents searchable. Processing is also the stage at which document volumes are reduced prior to review.
Review: During this phase, attorneys, paralegals, and/or managed review teams determine which documents are relevant or responsive to the matter, and identify and protect privilege or sensitive information, such as PII or PHI. Reviewers also may apply issue-specific tags or sensitivity labels such as “hot” documents.
Due to the high cost of using lawyers for document review, it has historically been the most expensive stage of eDiscovery. To control costs, litigants increasingly use managed review teams that are experienced in performing reviews efficiently by using analytics and AI-forward tools, such as technology-assisted review.
Analysis: Though somewhat self-explanatory, this stage involves evaluating the eDiscovery document collection to identify communication patterns of interest, topics, people involved in the case, timelines, and other relevant facts. Elements of analysis are also carried out during the processing and review stages.
Production: Here’s when the legal team produces the relevant ESI that is to be delivered to the relevant parties in an agreed upon form, delivery schedule, and method. There are many cases in which ESI was denied in court for not meeting court standards, so it’s important that the final production is done correctly.
Presentation: In this final stage of eDiscovery in legal, the legal team presents the ESI during a legal case, aiming to persuade the court of its position or argument based on the preparation of evidence. Today, presentation is mostly done in digital format, and may include PowerPoint presentations, tutorials, videos, and other formats that make key arguments understandable.
In real-life situations, each state of the EDRM often involves varying technologies, services, and expertise.
Is your organization ready for eDiscovery?
ESI is here to stay. In an evolving regulatory, data and AI environment, eDiscovery responsibilities under the FRCP and guidance from the ABA Model Rules are constantly evolving. Crafting a well-defined approach for managing eDiscovery–including the people, processes, and technology to handle growing volumes and challenging forms of ESI effectively and efficiently—is the best way to protect against sanctions and achieve positive outcomes.
If you are looking for eDiscovery support, UnitedLex can help. Let’s talk.