In following with the “crawl, walk, run” stance that many of those in the legal field have taken with the use of technology, the modification discovery has been treated no differently; However, now, it’s practically impossible not to utilize eDiscovery.
Traditionally, the process of discovery has encompassed interrogation of opposing parties, depositions, document requests, and other similar actions. Essentially, discovery boils down to the process of collecting (or discovering) information that may be in possession of the opposing party. With developments and widespread use of various technologies, electronic discovery (eDiscovery) has become a new standard seen in courtrooms and legal offices throughout the world.
So, what is eDiscovery exactly, and why is it so relevant to today’s practice of law? Having a good grasp of eDiscovery is crucial because it’s here to stay for the foreseeable future. Unfortunately, many law schools don’t place a focus on teaching eDiscovery, thus leaving lawyers to tackle this learning curve on their own. In this article, we’ll discuss this and more to support understanding eDiscovery in the field of law.
What is eDiscovery, and How Is It Different?
eDiscovery differs from standard legal discovery in that it consists of information in electronic format. Traditionally, the discovery process meant paperwork and physical files being transferred en mass from one party to the other throughout the court or litigation process. While eDiscovery hasn’t completely eliminated the need for physical discovery, it’s undoubtedly reduced it - most likely to the relief of many lawyers and law firms. Many lawyers today probably have fond memories of “discovery rooms” for the sole purpose of housing and going through papers and files.
Types of Accepted eDiscovery
The types of allowable eDiscovery forms encompass an extensive and continuously growing circle; This is because technology is in a perpetual state of advancement. Below are some commonly used and accepted types of electronically stored information (ESI) seen in the eDiscovery process:
- Audio - Information stored in audio format is popular in eDiscovery processes. Audio recordings can include voicemails, phone recordings, video audio, and other forms of recordings. Audio recordings have become preferable to recording transcriptions in many instances due to the promise of better accuracy.
- Video - Whether it’s snippets from security recordings, personal recordings on cameras or cell phones, or even portions of a video chat, video has become a frequent and often substantial portion of eDiscovery.
- Websites - Websites can enter into the eDiscovery process by way of the content they provide by way of video, audio, and text that is relevant to the case.
- Chat Logs - Logs of phone text conversations, instant messenger conversations, and chat room conversations are all frequently used in eDiscovery.
- Emails - Email communications between individuals and involving companies can make a significant portion of eDiscovery efforts depending on the case.
- Documents - Digitally created, stored, and shared documents are all admissible during eDiscovery.
- Databases - Databases used by companies, employees, and individuals can be used during eDiscovery; This includes financial institution databases.
- Social Media - With the prevalence of social media being used by companies and during the daily lives of many, it’s becoming more regularly used during eDiscovery efforts. Valuable photographs, videos, locations, conversations, comments, and other histories can be gathered through this type of ESI.
What is the Process of eDiscovery or EDRM?
As with most legal processes, eDiscovery has a written process for how it should be carried out; It’s called the Electronic Discovery Reference Model (EDRM). Outlined in the EDRM are the nine steps that should be followed, as shown below:
- During the Information Governance step, there is an opportunity to organize and limit risk and expenses should they arise during eDiscovery.
- The Identification process establishes a starting point of sorts and allows for the location of possible electronically stored information (ESI) sources.
- Preservation is essentially protecting ESI from being altered and preserving its history.
- The Collection step is used to gather, process, and review ESI for use within the case.
- During the Processing step, the ESI that was gathered is consolidated for use if necessary and reviewed for use.
- The Review step is when the ESI gathered can then be reviewed, sometimes through technology-assisted review (TAR) software, for case relevance, privilege, and need.
- During the Analysis of ESI step, all the content is reviewed to establish critical points of interest and relevant patterns.
- Production is the process of giving the gathered and processed ESI to others involved.
- During Presentation, ESI can be presented as needed during events such as trials and depositions.
Proper Handling of eDiscovery Data
Because eDiscovery has become such an integral part of the legal process, an amendment to the Federal Rules of Civil Procedure (2005) was added to establish and regulate the process. Preserving all ESI collected during the process of eDiscovery is especially important; Not only do both parties rely on adequately safeguarded and protected ESI, but the preservation of all data can also ensure that future data collected can be used.
According to the American Bar Association, Model Rule 3.4 establishes the following regarding the process of preservation and collection of ESI:
A “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” To avoid spoliation claims and adhere to Model Rule 3.4, attorneys must have a firm grasp on their client’s email and network infrastructure to be able to identify, preserve, and collect relevant documents competently. The first step in the process is issuing a litigation hold. Competent representation requires lawyers to have knowledge of the legal principles governing preservation and to be able to both identify their client’s sources of potentially relevant electronically stored information (ESI) and implement the litigation hold that satisfies their client’s obligations to preserve relevant ESI. To ensure that electronic documents and data are adequately preserved, the collection process should include interviews with document custodians to gain a better understanding of the location of all potentially relevant ESI.
The preservation-and-collection process also raises ethical issues related to the duty of candor under ABA Model Rule 3.3. Specifically, this process raises the following issues related to counsel’s ability to represent to both opposing counsel and the court accurately: (1) the client’s capabilities associated with locating and producing ESI in an agreed-upon format; (2) the thoroughness of the searches and review performed; and (3) the contents of the production of electronic discovery.”
Benefits of eDiscovery
With eDiscovery carving its way to the forefront of legal discovery processes, predominantly out of necessity, it’s also hard to ignore some of the benefits that come along with it. Below are some of the most impactful positive changes legal teams have seen:
- Accuracy improvement stemming from the reduction of collection and preservation methods used for ESI.
- Costs related to legal discovery can be reduced for law firms due to the process being simplified and often shortened.
- Discovery collaboration and sharing efforts are made easier.
The availability of eDiscovery software to be used by legal professionals during the discovery process has been somewhat of a game-changer. Essential discovery processes, like that of tagging, producing, processing, and reviewing ESI, have been simplified and sped up and simplified, both saving time and money for lawyers and law firms everywhere. With good eDiscovery software, such as Everlaw or Exterro, lawyers and their teams can handle things like:
- Data sorting
- Quick duplicate and non-essential document elimination
- Easy collaboration between teams and parties involved
- Bates Stamping
With the growing needs of eDiscovery within the legal realm, a new job has been carved out - the eDiscovery professional. The job performed by an eDiscovery professional can alleviate the stress of discovery from mainly resting on that of a busy legal team in the following ways:
- eDiscovery professionals can handle communication with clients on policies and procedures of the eDiscovery process.
- The assessment and of ESI in possession of a client can quickly be assessed by an eDiscovery professional.
- Preservation policies can be implemented and upheld by eDiscovery professionals.
- eDiscovery professionals should be very familiar with the federal rules that apply, which can help save a legal team a lot of time focusing on ensuring compliance.
- Lawyers can gain valuable assistance from eDiscovery professionals in the process of collecting and reviewing ESI.