Thus, the “e” in e-discovery stands for electronic. E-discovery is the process by which parties share, review, and collect electronically stored information (ESI) to use as evidence in a legal matter. ESI is a broad term that can encapsulate a whole host of digitally created content. E-mails, Microsoft Word documents, social media posts, company-specific databases, and audio and video files all fall under the domain of ESI.
Simply put, in the very near future, knowledge of e-discovery will be essential for an attorney to provide competent representation. In fact, amendments to the Federal Rules of Civil Procedure (FRCP) have already been made to recognize e-discovery as a vital procedure for civil lawsuits. As a result, attorneys should begin to learn best practices to help them plan for the time and costs associated with the e-discovery process.
Learn the Process
Thankfully, legal professionals can use the Electronic Discovery Reference Model (EDRM) as a starting point. The EDRM is widely considered the definitive framework for the e-discovery process. The EDRM divides the e-discovery process into iterative “stages” (meaning one might repeat the same step multiple times) connected by arrows. What follows is a summary of the stages.
- Information governance (IG): IG is the process of getting your shining house of data in order to mitigate risk and expenses. As companies create, collect, and store more data, they must consider how to keep that data secure, private, and compliant. IG focuses on the life cycle of ESI, from creation to deletion. IG is about getting companies to create and carry out a series of procedures for how they create, manage, store, and secure ESI, as well as the legal and regulatory obligations tied to e-discovery. IG even has its own model for legal professionals to follow: The Information Governance Reference Model (IGRM).
- Identification: In order to prepare for litigation, the legal teams need to identify and decide what pieces of ESI are relevant.
- Preservation: Once identified, relevant ESI must be protected from destruction or alteration. This is usually done through a legal hold sent to the custodians of the data informing them not to delete certain ESI.
- Collection: ESI must then be gathered for processing, review, etc., and there are many ways of doing this. However, the method used must be legally defensible to ensure that nothing in the ESI was altered during the collection process.
- Processing: The collected ESI must be prepared for attorney analysis. Specialized software is used to help reduce the volume of data and convert it to a format easier for review.
- Review: This stage involves evaluating ESI for relevance and privilege. Software such as Computer Assisted Review (CAR) or Technology Assisted Review (TAR) can distinguish between relevant and non-relevant documents.
- Analysis: This stage involves evaluating the ESI for its content and context: patterns, subject matter, people involved, and discussions.
- Production: If relevant ESI is to be used as evidence, it must be produced following rules and procedures.
- Presentation: The last step is displaying ESI as evidence in a trial, deposition hearing, etc.
When collecting data, be as comprehensive as possible. Everyone involved in the legal dispute should be interviewed, and any relevant insights or information should be collected from them. They should also be made aware of the hold that is placed on the information they offer. Maintaining the original content of the ESI should be a priority for all attorneys.
Be Aware of Your Data Collection Options
Because ESI is so broad and the data can come from varying sources, the forensic technologies used to collect the data can be overwhelming. Figure out which process works best for you (and your bottom line). Whichever tools you use, ensure that the data is collected comprehensively, with attention paid to its authenticity and the preservation of the chain of custody.
Keep Track of Every Step of the Process
Create a system that documents every step of your collection process and use it for every case. You may also consider hiring a third party to audit your process.
Focus Only on What Matters
The sheer amount of data that can be collected during the e-discovery process is staggering. However, the majority of this data is useless. Your priority should be to focus on the data that is relevant to the case. An attorney can save significant time and money by using technology to cull irrelevant data. As such, plan the scope of the case early so you can figure out the precise time line and type of data you require.
Make the Review Process More Efficient
The review process typically has been done through keyword hits. This process is very inefficient, so adopt a contextual review process to save time and costs. Use e-discovery software to cut the review time and organize the information. This type of software can help sort through a multitude of data such as e-mail chains and organize that data so it can be presented in context.
Communicate with All Parties
In order to avoid last-minute emergencies and additional work, all parties involved in the case should agree on the production details, limitations, and other technical details early on. The same goes for the team you will work with (whether it is in-house or a third party). Be clear about who is responsible for the production work, and make sure they understand the production requirements.
Track and Evaluate All the Production Documents
Track both paper and electronic documents and who handles them as they go through the discovery processes. As soon as you receive any data, conduct a review to note what you received and your assessment of the data. Frequently review all the data to make sure no confidential files are shared with the opposing counsel.
While at times complex and arduous, the e-discovery process is an unavoidable part of the larger legal process. Attorneys cannot afford to lag behind, especially when the consequences can be as severe as a malpractice complaint or lower profits. Attorneys need to take the time to review the appropriate materials on e-discovery and become experts in the EDRM model.
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