The best lawyers know that any case is only as good as what was uncovered during discovery. That's why it’s vital to optimize an effective eDiscovery process.
Getting eDiscovery right requires not only a knowledge of legal procedure and accompanying information technologies, but it also requires a working knowledge of a given company’s internal processes.
The necessity of an in-depth eDiscovery procedure comes with many disruptions. Courts and regulatory organizations create unforgiving deadlines on producing evidence, which in turn creates strict timelines for any data collection for the professionals in charge of eDiscovery. Therefore, efficiency is of the utmost importance in the eDiscovery process.
The processes for effective eDiscovery are not straightforward, and almost everyone except experienced professionals in the area are lacking in some areas. Rather than getting mired in the slow process of figuring out optimal eDiscovery, a lot of businesses employ outside agencies to ensure results.
In this article, we'll examine what eDiscovery is, while providing best practices for implementing processes, workflows, and software.
What is eDiscovery
The term eDiscovery is short for electronic discovery, and the process identifies, collects, and in some cases, produces electronically stored information (ESI), such as financial records, personnel files, and other records that might bear pertinence in litigation or legal proceedings.
eDiscovery requires an in-depth understanding of the kinds of data needed in litigation and the myriad of places that data will be stored in a company’s electronic systems. ESI can include emails, databases, voicemails, and audio files. It can also include social media and other sites. However, there are many other sources of relevant information that can appear.
Not all pertinent information in ESI is input by users. Relevant information can include metadata such as timestamps, file properties, and sender/receiver information. Some eDiscovery uses artificial intelligence to aid information retrieval and organization.
To understand the importance of eDiscovery, you must understand its purpose. The initial phase of litigation is called Discovery. In this phase, the court requires disputing parties to provide records and evidence relevant to the case.
In the information age, eDiscovery is a proactive approach to collating and processing records before any court order or subpoena requires evidence. It is designed with the idea to preempt any requirement for records prior to any potential lawsuit. eDiscovery continues at least until presenting evidence at court.
Here’s a brief overview of the process:
All involved attorneys identify relevant information and place it on legal hold.
Attorneys on both sides agree on the range and depth of eDiscovery necessary for litigation. At this stage, attorneys might negotiate discovery terms (i.e. how deep or far back in time. etc.) to cast their net.
With digital forensics, they get evidence from the pool of information and convert it to formats usable in court.
Discovery has been part of the litigation process for as long as there have been law courts. eDiscovery law, using technology to gather and collate information, therefore, becomes an important workflow.
eDiscovery Processing Workflow
While eDiscovery processing workflows can vary from one case to the next, there is a schema that tends to be effective:
Information Governance (IG) is a stage when the eDiscovery team will do an overview of the information and start to create a plan for overall eDiscovery.
Identification occurs when the varieties of potential litigation scenarios emerge. At this stage, eDiscovery empowers more focused searching and sorting parameters to better protect clients from potential lawsuits.
Preservation and Collection happen simultaneously.
Preservation of records is essential and presents its own challenges in a world where people like emptying their email inboxes, where files get misplaced or mislabeled, etc.
Collection of backups and copies of ESI guards against failure to provide evidence to courts or regulating organizations when required.
4. Processing, Review, and Analysis also occur simultaneously.
ESI is processed for use by attorneys to analyze and review.
Review of ESI occurs to ensure completeness, relevance, consistency, etc.
The analysis evaluates all gathered ESI for relevant information.
Production is the stage in which all ESI that is determined relevant as evidence is organized into formats required by the courts or regulating organizations involved in the lawsuit.
5. Presentation is the final stage of the eDiscovery processing workflow. At this stage, all gathered ESI is provided to clients in the formats required for their attorneys to present as evidence.
eDiscovery process workflow might look different for different lawsuits, but it will generally follow a similar format to the one outlined.
Both time and money are saved when the eDiscovery process is streamlined through better platforms and management.
Here are a few ways to streamline the process:
Conduct search-at-source targeted collections to reduce collection sizes across projects.
Lower the promotion rate on the eDiscovery platform to identify key documents and exclude non-responsive materials with more accuracy.
Use workflows and technology to track data at the original source to avoid re-collections, refresh collections, and avoid potential spoliation.
Reduce review speed from the industry average of 35-45 documents per hour (DPH) through advanced technology and processes.
Utilize legal resources around the world to maximize time and meet challenging deadlines.
Read about this in more detail in our article, “Measuring Cost Is No Longer Enough for eDiscovery.”
eDiscovery Processing Software
Automation increases the speed and accuracy of the eDiscovery process. AI-driven processes can accomplish cross-referencing and data collation with speed and accuracy.
UnitedLex uses the AI-driven Reveal eDiscovery processing software to aid all eDiscovery processes. Automation enables UnitedLex to accomplish eDiscovery with a dramatic improvement in speed and precision.
UnitedLex is a technology and legal services company committed to delivering full-scale Digital Legal Transformation. The world’s most forward-thinking law departments rely on the company’s expertise in over 25 global jurisdictions. Founded in 2006, the team includes 3,000 legal, engineering, and technology professionals with major operations in 18 countries. For more information, contact us.
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