What is e-discovery?
e-discovery, a compound version of the term “electronic discovery”, is the legal process that parties take to gather and review electronic information. The purpose of e-discovery is to preserve electronic documents to be used as evidence as part of a legal case. e-discovery can also involve court-ordered or government-sanctioned hacking if pieces of evidence are deemed critical to a case.
As electronic formats have become the norm over the years, e-discovery has become an increasingly important piece of the legal justice system. As a vital part of how many cases gather evidence, it has become a more formal and regulated process. In 2005, the Federal Rules of Civil Procedure (FRCP) were amended in response to the growing popularity of e-discovery.
The e-discovery process is complex and multi-layered. It is more that one single task, rather it is a series of diligent steps and actions that together help build solid evidence for a legal case. The types of electronically stored information (ESI) that can be gathered are vast and can include notes, docs, email, voicemails, audio, video, database files and more. The e-discovery process usually begins when it seems like litigation is reasonably likely.
The actual processes for gathering the documents are also complex and change depending on how data and where is stored and how complex the data is. Electronic data is richly layered and often contains metadata (for example, timestamps) that needs to be preserved as well. In order to rule out any claims of spoliation or tampering with evidence in the case, the process of e-discovery must be thorough and meticulous and uphold the original content of information.
Once the relevant data has been gathered by both sides, it is indexed and placed into a database. Then, all of the data is placed under a legal hold. After the data has been placed under a legal hold it can’t be modified or deleted. From here both parties can analyze the data to pull out the specifically relevant documents from the large store of data that has been gathered.
The phases of e-discovery
The Electronic Discovery Reference Model (EDRM) is a diagram that lays out the series of steps necessary to go through the process of e-discovery. In general, those steps are:
- Identification: Understanding the the scope and potential location of ESI that might be relevant to the case.
- Preservation: Protecting any of that information from being immediately destroyed or tampered with.
- Collection: Gathering all of this information from the corresponding sources.
- Processing: Converting ESI to an easily browsable format and culling any information that is repetitive or redundant.
- Review and Analysis: Evaluating all of the gathered information to highlight what is truly relevant and essential for the legal case.
- Production: Delivering the ESI to the necessary recipients and in easily readable forms.
- Presentation: Displaying ESI to others during various parts of the legal case.
Why e-discovery is important
e-discovery is essential, not just to be legally compliant, but also for legal teams to be able to provide competent representation to their clients. Lawyers who don’t know and understand how e-discovery works will become less able to effectively do their job as more and more documents are moved to electronic formats. State bar associations have already begun highlighting the need to stay up-to-date on the benefits and risks associated with relevant technology.
The importance of e-discovery is becoming clearer and clearer as the outcome of enormous legal cases is more frequently decided by a few tiny pieces of information from a client’s email or documents.