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Electronic discovery, or eDiscovery, is the process of obtaining and exchanging electronically stored information in a civil lawsuit or dispute. ESI can include emails, attachments, and digitally stored documents. Lawyers and their staff engaged in eDiscovery use software to absorb, sort, and produce that data for the requesting party.
eDiscovery is part of the overall discovery process in a dispute. It doesn't obviate traditional paper discovery, but complements it.
What Is eDiscovery and How Does it Mechanically Occur?
For those unfamiliar with the processes involved in eDiscovery, it's useful to examine this process to better understand its components. At its most basic, eDiscovery involves preserving, collecting, and processing electronically stored information with an eye toward data production.
Preserving relevant ESI occurs at the earliest phase of a dispute because the applicable standard triggering this obligation is when a party reasonably knows of a dispute. Thus, the preservation obligation can occur long before the filing of a lawsuit. Instead, a litigation hold notice or letter sent to notify a party of the possibility of a dispute may trigger this action.
The preservation obligation is critical to the eDiscovery process. It's like the first button on a shirt or blouse—if one starts with the wrong hole, the rest of the buttons will be off. Similarly, failing to meet the preservation obligation can expose a party to spoliation sanctions later in the dispute.
Many states provide safe harbor provisions in their procedural rules in lawsuits. Therefore, companies can avail themselves of these protections with written data management plans and preservation protocols.
Documents built around their existing IT architecture will define when a business normally disposes of data and devices. Deleting data or disposing of devices in accordance with a plan allows a business to avail itself of these safe harbor provisions. This, in turn, guards against spoliation claims and adheres to preservation obligations.
The collection process doesn't need to occur at the outset of a dispute. Instead, it can be reserved until discovery is sought. If the data is preserved, then its collection can be simplified, rendering the subsequent processes much more efficient.
Collection in eDiscovery refers to the mechanical process by which the attorney or law firm that'll perform the eDiscovery obtains the ESI from the client and places that data in a location for processing later.
Litigators with small datasets, where they enjoy a high level of technical competence, may decide to process that data alone. However, in most cases—and more often to provide a level of protection to themselves—attorneys will work with an eDiscovery software company that'll either perform the collection process or guide the attorneys in that process.
The collection process is the most technical component of eDiscovery. It's not limited to computers but includes every device and location where relevant ESI is stored and preserved. It can include phones and tablets, thumb or external drives, social media, and other devices or locations that attorneys must identify with their client early in the case through their assessment process.
The processing component of eDiscovery relates to the method by which legal teams review and analyze the data obtained from their client. More often, this occurs with the help of eDiscovery software that ingests and digests the data. This makes it easier to search and separate the data to identify data relevant to the attorney’s purpose.
eDiscovery software is an amazing invention. It's capable of taking enormous amounts of data and instantaneously scanning it to find items that match the search parameters.
While it may sound simple, the technology behind this engine is extremely sophisticated and, as technology advances, so does the power of this software. This makes it easier to use and allows attorneys in the eDiscovery process to work with large amounts of data.
ESI processing is not limited to responding to discovery requests propounded by the opposing party in a dispute. Attorneys can use eDiscovery software to identify documents within a dataset that might be useful in depositions or mediation.
Within the software realm exists technology that also learns as it performs searches to enable an automated process.
Technology-assisted review, or TAR, doesn’t replace the human mind in the process. Instead, it can make reviewing particularly large datasets more efficient, versus simply searching by keywords or phrases.
The result of any eDiscovery undertaking may be production of the data to the requesting party. In a situation where counsel uses eDiscovery software on their client’s data for their own benefit, such as identifying documents or data that'll be useful in depositions or mediation, there's arguably no production because the resulting data is not provided to any other party.
However, when a party seeks documents in a dispute through the discovery process and uses eDiscovery software to find the responsive data or documents, that data will be provided to the requesting party in the production process.
Production is not merely the turnover of responsive documents. Production involves reporting privileged and confidential data in the process and tracking documents produced.
Fortunately, eDiscovery software builds in automated Bates labeling. It also creates privilege logs for documents that counsel has identified as privileged or confidential in the processing phase.
While it's permissible for counsel to review and produce data without eDiscovery software, eDiscovery software enables the creation of production sets in various formats. It also allows counsel to more effectively provide responsive documents that are traceable by Bates numbers and redacted or marked directly within the software.
Because people and businesses now store vast amounts of information electronically, eDiscovery exists in every dispute.
eDiscovery software makes the process of reviewing and producing relevant and responsive data easy. However, the most important part is preserving relevant data when there's a reasonable belief a dispute will occur.
eDiscovery software providers have experience in the eDiscovery process and regularly assist attorneys in all phases of the process. In keeping with the phrase "the best defense is a good offense," it's prudent for counsel to connect with a competent eDiscovery software provider.
This way, they can utilize that party’s expertise in guiding counsel in the preservation, collection, processing, and production activities that comprise the process of electronic discovery.
About the Author
David Steinfeld, Akshita Singhal & Lianna Vaughan
This post was written by David Steinfeld. David is a Florida Bar Board Certified business lawyer with 25 years of experience. AV-Preeminent Rated. Ranked by Best Lawyers in America. Florida Super Lawyer and Legal Elite. (https://www.davidsteinfeld.com/) This post was reviewed and published by Akshita and Lianna, the in-house team of Venio.