The Process of eDiscovery Forensics

  • Will Pfeifer
  • August 13, 2021

Companies across all verticals are going through digital transformations. New technologies and applications are constantly coming to market that make workflows faster, cheaper, and more efficient than ever before. 

As a result, more and more data is coming into existence—and companies across the board are struggling to manage it. This creates a massive liability. 

As such, legal teams need to evolve with the changing technology landscape. For example, it’s critical to have a robust eDiscovery forensics solution in place to discover, manage, and use information in court. 

Keep reading to learn about eDiscovery forensics and why it’s a game changer for legal teams. 

What Is eDiscovery Forensics?

Obtaining digital information is a bit like finding a dinosaur fossil. You can’t haphazardly rip a dinosaur out of the ground. Instead, you need a team of trained archaeologists that know where to look, what to uncover, and how to extract the specimen once they find it. 

Likewise, digital information is exceedingly complex. When accessing data, you have to carefully extract and preserve the information to make sure it stays intact and usable during litigation. After all, the last thing you want to do is destroy evidence when collecting it. 

With this in mind, teams use eDiscovery forensics to locate and access electronically stored information. Digital forensics professionals specialize in knowing where to look and how to obtain information safely and efficiently. 

Why Do Teams Use eDiscovery Forensics?

It’s easy to confuse eDiscovery with data science. While the two processes have similar functions, they have different purposes. 

With data science, companies primarily extract information for sales, research, and marketing purposes. For example, many organizations now use real-time data processing engines to pull data from connected devices, end-user machines, websites, and social channels. 

Digital forensics is similar except that it’s primarily for legal purposes. With digital forensics, you extract information to process, preserve, and prepare for use in court. 

Are Digital Forensics and eDiscovery Different?

Digital forensics and eDiscovery go hand in hand. 

Going back to the dinosaur analogy, digital forensics tools are like picks and shovels. And eDiscovery is like the people, strategy, and methodology behind the operation. 

In a legal discovery setting, it’s generally better to use certified IT professionals who know how to deal with back-end systems. To illustrate, you may be a trained eDiscovery specialist that’s up to date with the latest best practices and methods. But overall, you may lack the expertise to dig through a back-end database and extract or transfer data. 

As such, eDiscovery teams rely on digital forensics experts to dig into servers, drives, and end-user machines and pull information. Forensics professionals also often analyze information and provide eDiscovery teams with analysis to further their investigations. 

What Is eDiscovery?

Before two teams go to court, they meet to exchange information during the discovery process. 

First, both teams have a meet-and-confer session, which officially kicks off the pretrial negotiations. During this stage, the two teams can legally request information from one another. 

This is acceptable under Rule 34 of the Federal Rules of Civil Procedure (FRCP). In short, FRCP 

Rule 34 enables any party to serve any other party with a request for information within the scope of Rule 26(b). Rule 34 also outlines the different types of discoverable information. 

To summarize, you can request tangible evidence like photos or paper. You can also request access to private property for an inspection. 

Additionally, you can request eDiscovery, which refers to electronically stored information. This may include writings, drawings, charts, graphs, photographs, images, sound recordings, and other data or data compilations. 

As you can see, eDiscovery and discovery are one and the same. Digital forensics analysts play a huge part in the eDiscovery process, as they help extract, preserve, and transmit digital evidence for use in court. 

Why Is eDiscovery Necessary?

The whole point of eDiscovery is to collect, manage, and share evidence. 

The process essentially grants legal teams a formal way to request information from another party. By requesting information, you can either build a case or defend a position in court. 

The reason teams go through eDiscovery before trial is to give the other side adequate time to ask for any information they need. The eDiscovery process prevents surprising another party during a trial. 

Another benefit of eDiscovery is that it allows you to control production costs. You can object to a request on the grounds that it’s overly burdensome. If the court grants your request, you may not have to produce the items. You may also be able to negotiate and potentially share ESI in a different format. 

How to Submit a Request for Production of Documents

It’s important to realize there’s a formal process for requesting information during the eDiscovery process. 

You have to submit a request to another party in writing. According to Rule 34, the request must describe each item or category that you want to inspect. Further, you may specify the form or forms that you want the other party to produce ESI. 

When you’re ready to roll, put together a formal letter and submit the document to the other party. 

Upon receiving the letter, the party has 30 days to respond in writing. What’s more, if the request falls under Rule 26(d), then the party can respond within 30 days after the first Rule 26(f) conference. The court may issue a shorter or longer time, either under Rule 29 or by court order.

Thirty days isn’t much time for responding to a request, which is why it pays to have a fast and responsive digital forensics team on hand. The trick is to have a team that can quickly locate, pull, organize, and analyze information in court without disrupting workflows or risking the data. 

Any company operating without a digital forensics team risks missing eDiscovery deadlines and could face either court sanctions or court losses. 

Can a Party Object to a Discovery Request?

When submitting a request during the eDiscovery process, you should also prepare for the other team to object. 

Just because you submit a request doesn’t mean the other team automatically has to comply. They may push back on the grounds that the request is either overly burdensome or unnecessary. 

If the other party objects to your request, they must submit the objection in writing and explain their reasoning. 

If you don’t hear back from the other party, you can file a motion to compel under FRCP Rule 37. By taking this step, you’re essentially asking the court to force the other party to comply with your request. 

Streamline eDiscovery With Venio

Legal teams often struggle with eDiscovery due to a disconnect between digital forensics and eDiscovery. 

You can overcome this challenge by having a central platform in place for managing data and sharing information among different departments. 

For example, Venio offers Venio Cloud, which is a secure, cloud-based portal for end-to-end eDiscovery management. 

Using Venio Cloud, team members can easily share, analyze, store, and process information for use in court. Venio Cloud can help streamline the entire process end to end, from forensic gathering to presentation. The platform ultimately makes eDiscovery faster, safer, and more cost-effective. 

If that sounds interesting, and if you’re ready to start exploring Venio Cloud, request a demo today

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.