Every organization should take necessary steps to be prepared for E-Discovery. What is E-Discovery?
Electronic discovery or E-Discovery refers to discovery in legal proceedings such as litigation or government investigations where the information is sought is in electronic format. This information is often referred to as electronically stored information or ESI.
Electronic information is considered different from paper information because of its intangible form, volume, transience, and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and it can play an important part as evidence. For example, the date and time a document was written could be useful in a copyright case. The preservation of metadata from electronic documents creates special challenges to prevent its destruction.
The identification phase is when potentially applicable documents are identified for further analysis and review. Failure to issue a written legal hold notice whenever litigation is reasonably anticipated, will be deemed grossly negligent. This is why it is very important to implement legal holds on specific electronic information.
Custodians who are in possession of potentially relevant information or documents should be identified. To ensure a complete identification of data sources, data mapping techniques can be used. Since the scope of data can be overwhelming in this phase, attempts are made to reduce the overall scope during this phase, such as limiting the identification of documents to a certain date range or search term(s) to avoid an overly burdensome volume of information to be on legal hold.
A duty to preserve begins upon the reasonable anticipation of litigation. During preservation, data identified as potentially relevant is placed in a legal hold. This ensures that data cannot be destroyed. Care should be taken to ensure this process is defensible, while the end-goal is to reduce the possibility of data destruction. Failure to preserve data can lead to sanctions. Even if the court rules the failure to preserve as negligence, they can force the accused party to pay fines if the lost data puts the defense at an undue disadvantage in establishing their defense.
Once documents have been preserved, collection can begin. Collection is the transfer of data from a company to their legal counsel, who will determine relevance and disposition of data. Some companies that deal with frequent litigation have software in place to quickly place legal holds on certain custodians when an event (such as legal notice) is triggered and begin the collection process immediately. The size and scale of this collection is determined by the identification phase.
During the processing phase, native files are prepared to be loaded into a document review platform. Often, this phase also involves the extraction of text and metadata from the native files. Various data sorting techniques are employed during this phase, such as de-duplication. Sometimes native files will be converted to a paper-like format (such as PDF or TIFF) at this stage, to allow for easier redaction labeling.
Modern processing tools can also employ advanced analytic tools to help document review attorneys more accurately identify potentially relevant documents.
During the review phase, documents are reviewed for responsiveness to discovery requests and for privilege. Different document review platforms can assist in many tasks related to this process, including the rapid identification of potentially relevant documents, and the sorting of documents according to various criteria (such as keyword, date range, etc.). Most review tools also make it easy for large groups of document review attorneys to work on cases, featuring collaborative tools and batches to speed up the review process and eliminate work duplication.
Documents are turned over to opposing counsel, based on agreed-upon specifications. Often this production is accompanied by a load file, which is used to load documents into a document review platform. Documents can be produced either as native files, or in a paper-like format (such as PDF or TIFF), alongside metadata.
Types of ESI
Any data that is stored in an electronic form may be subject to production under common E-Discovery rules. This type of data can include email and office documents, photos, video, databases, and other file types such as raw data.
Litigators may review information from E-Discovery in one of several formats: printed paper, "native file", or a paper-like format, such as PDF files or TIFF images. Modern document review platforms accommodate the use of native files, and allow for them to be converted to PDF and TIFF files. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.
Because E-Discovery requires the review of documents in their original file formats, applications capable of opening multiple file formats would be very useful.
In order to prevent data to be inadvertently destroyed, companies should deploy which properly preserves data across companies, preventing inadvertent data destruction.
Proper retention and management of electronically stored information (ESI) is crucial in every organization in order to be able to comply with E-Discovery process. Improper management of ESI can result in a finding of evidence destruction and the imposition of sanctions and fines.
We helped many organization in their E-Discovery preparedness in the last 17 years. We can do the same for you. Please call us for a free consultation.