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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.
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.
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:
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:
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.”
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:
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:
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:
Let's face it, downtime, hiccups and technical challenges are unavoidable in every business and they can be frustrating and downright costly.