Electronic discovery, or e-Discovery, has increasingly been part of the normal discovery process for the past two decades. But the shift to Zoom hearings and depositions and the difficulties with meeting with clients in person this past year have accelerated the transition away from the exchange of relevant information in the form of physical documents to a digital exchange of documents.
E-Discovery refers to the process by which parties share, review and collect electronically stored information, or ESI, to use as evidence in a legal matter. ESI can refer to any digitally created content, such as emails, documents, text messages, social media posts, company-specific databases, or audio and video files. E-Discovery shares much in common with its analog predecessor, but it also brings unique challenges.
The stakes of getting discovery right for attorneys and their clients are high. The American Bar Association lists inadequate discovery as one of the top 5 legal malpractice claims. As the volume and scope of e-Discovery increases, it opens the door further to costly mistakes.
But taking steps now to familiarize yourself with an effective e-Discovery process can help minimize the risk of problems down the line. Keep in mind that rules may be different in different jurisdictions including, but not limited to, differences in local rules for Federal District Courts.
Understand the EDRM
The Electronic Discovery Reference Model, created in 2005 by George Socha and Tom Gelbmann, provides a framework for managing the e-Discovery process.
The EDRM consists of nine stages that give an overview of how to approach the e-Discovery process. While not all cases will follow these steps, and some cases may include additional steps in the discovery process, it provides an effective starting framework for attorneys.
Information governance refers to the set of policies, procedures, processes, and controls implemented to manage a company’s information. Information governance has recently been added to the EDRM, a result of recent efforts of large organizations to identify ways to reduce e-Discovery costs before litigation happens, which means managing ESI from its initial creation through its final disposition.
Identification includes locating potential sources of ESI, the volume of data that might be discoverable, and the custodians and locations of discoverable evidence. It’s critical during this stage to not only identify the evidence but address the potential scope and technical issues of the project at hand.
Parties must ensure that ESI that is discoverable for litigation is not altered or destroyed. ESI is often deleted in the course of routine business, but when potentially discoverable information is deleted, that can be considered spoliation, a sanctionable offense in some cases.
Collecting ESI is a significant challenge. Data must be collected in a forensically sound manner so that evidence is not altered or changed. E-Discovery software can help ensure this process happens in an appropriate manner.
In order to review evidence in a forensically secure manner, ESI is often converted to forms more suitable for review and analysis, often an image file. The original, native document is preserved as well for more detailed, forensic analysis.
The heart of the process. Attorneys must review documents and evidence for relevant information while protecting privileged information from being accidentally produced to opposing counsel.
Attorneys must review ESI for content and context and identify key custodians, subjects, patterns, and discussions.
Production involves delivering ESI to others in appropriate forms. Parties still often produce evidence on hard drives or disks, although electronic production is also employed.
Once ESI has been reviewed for relevance, pieces or passages may be presented at a deposition, hearing, or trial. Evidence is presented to help witness testimony, demonstrate key facts, or persuade a jury or audience.
Manage the e-Discovery Process with Technology
Digital evidence is playing an increasingly important role in all areas of law. In our increasingly digital lives, we all leave a daily trail of electronic evidence that often tracks our every move. And it is all available for discovery.
The volume of data we create is accelerating at an exponential rate. Our digital footprint is estimated at over 2.5 quintillion bytes of data created every day, 90% of which has been created in just the past 5 years alone.
The days of sitting on the floor sifting through boxes of discovery are long over. But the growth of discoverable digital data means that attorneys will need the help of powerful technology to sort through, securely store and manage all of that data.
That software can make the e-Discovery process more efficient and secure — but it can also make it more complex and expensive. For example, Samsung collected and processed about 3.6 terabytes of data, or 11,108,653 documents, in a recent patent dispute case against Apple Computers. The cost to process that evidence during a 20-month period? Over $13 million dollars.
Discovery can trigger a byzantine labyrinth of processes, comprising litigation holds, identifying custodians and repositories, evaluating and procuring vendors, and data analysis and culling procedures.
Modern discovery software helps attorneys strip away overly complex processes and creates an interface that makes finding, organizing, and reviewing documents more manageable. But firms must balance the costs of such e-Discovery data collection, analysis and storage with the benefits to the case, all the while making sure that they are adhering to discovery rules of procedure and avoiding costly mistakes.
And like most growing, multi-billion dollar industries, there are many vendor options for e-Discovery software. Vetting them and identifying the best one to meet your needs can be difficult. Your bar association may offer resources and CLE credits devoted to helping you find and use e-Discovery software, such as the American Bar Association’s legal technology buyer’s guide.
Every case’s e-Discovery is different. But the best way to achieve successful case outcomes and protect your firm against sanctions is to have defined processes and protocols in place for conducting your e-discovery activities.