The Basic Steps Of eDiscovery

This is the 2nd article in an eDiscovery primer series, in which I talk about eDiscovery in a simple and easy to understand way.  

In the 1st article, I defined what eDiscovery is and why it's important to understand.  To recap, eDiscovery is simply the process of including electronically-stored-information (ESI) in the discovery process.  Attorneys are obliged to be competent in the subject and the evidence could make the difference between winning and losing a case.  

To help put the importance of eDiscovery into context, it is useful to understand the evolution of information as we moved from a primarily paper-based society to a digital one.  In the "old days," a document request consisted of interviewing custodians, getting copies of their documents from their filing cabinets, reviewing them and producing a copies of the documents.  And then, things got crazy!  Starting in the 70's, with the advent of the microprocessor, we started relying exponentially on computers to communicate and run our businesses.  Now we are faced with an ongoing glut of data that shows no signs of stopping.  People use email, social mediaand smart phones to communicate.  We horde our data because we are afraid to get rid of it. 

How much stored data are we talking about? Consider this: you might have had a few thousand documents in your filing cabinet in the old days: now you might have millions of documents on your laptop alone, not to mention your smart phone and any other devices you might use to house information (cloud storage, external hard drives, USB thumb drives, CDs, DVDs, etc.).  Identifying, collecting and reviewing this amount of information is impossible using the processes and techniques from the old paper days.  

While eDiscovery can be complex, it is relatively straightforward to understand from a high level. Fortunately, in 2005, some brilliant people created the Electronic Discovery Reference Model (EDRM) to describe and visualize the process. After years of confusion in the industry, George Socha and Tom Gelbman, created the EDRM to provide some commonality to the process and terminology.  

The EDRM breaks the process up into nine iterative "stages," which are commonly thought about in two distinct buckets:the "left side," which has a focus on preparation, and the "right side," which focuses on the process once a case has been filed.

While the EDRM looks like a simple process map, it is important to understand that there are many sub-tasks and potential challenges in each "step."  That said, a summary of each of the nine "steps" will help you get a good starting point.

Information Governance

Information Governance (IG) is not really a step in the discovery process, but rather an overarching concept that guides how an organization handles its information. This can encompass everything from security and compliance to document retention and basic organization. It's the organizational aspect that has a significant impact on the discovery process. Companies that keep their house in order, so to speak, are better prepared to respond to information requests, such as legal discovery or Freedom Of Information Act (FOIA) requests.

Identification

Identification is the act of locating the source of potential evidence.  An important step to identifying the evidence is interviewing the key custodians.  As with paper, you want to know things like:  What kind of work do you do?  Who do you work with?  Who authored the document?  Who has copies of it? 

However, with ESI, there is much more to consider.  You will want to work with the IT department and eDiscovery experts to create an appropriate list of questions that include: What computers did you use?  What software did you use?  What email system(s) do you use?  What social media networks are you active on?   

Preservation

Once you have identified the sources of potentially relevant ESI, it is time to take steps to ensure that the evidence is protected from changes, tampering or destruction.  This is referred to as "spoliation."  It is important to issue a legal hold notification to the appropriate people who have been named in the identification process, instructing them to refrain from deleting the ESI identified earlier.  This notification is sometimes enough, but sometimes it may be necessary to take additional steps.  The data can be locked to prevent modification or deletion and ready to be collected later on.

As we have seen in recent case law, including the famous Zubalake case, attorneys have an obligation to help their client fulfill their duty to preserve evidence. 

"Once on notice, the obligation to preserve evidence runs first to counsel, who then has a duty to advise and explain to the client its obligations to retain pertinent documents that may be relevant to the litigation.” - Telecom Int’l Am., Ltd. v. AT&T Corp., 189 F.R.D. 76, 81 (S.D.N.Y. 1999)

Processing

The processing phase of the eDiscovery process involves preparing the evidence for reduction, analysis and review.  Electronic Discovery software systems extract the pertinent data (text and metadata) from the previously collected copies of ESI and non-searchable documents are treated to Optical Character Recognition (OCR) to render them searchable.  Other processes occur in this phase that assist with reducing the amount of documents subject to legal review, such as identifying meaningless system files and duplicates.  Once the processing is complete, further data reduction can occur by applying search terms, date range restrictions, and technology assisted review (TAR) before proceeding with attorney review.

Analysis

Throughout the entire process you will be analyzing information to inform your next steps. You will be looking for patterns, identifying key people, understanding who talked to who about what and when.  

Prior to doing any eDiscovery collection or processing, this information becomes available through discussions with custodians, department heads, IT professionals  and others. Those discussions inform the decisions that follow in the collection, processing and review phases.  

After ESI has been processed, Electronic Discovery software systems can present visual data analysis tools, concept clusters, timelines and communication analysis tools to help you further understand the evidence. All of this information can be used to reduce the documents ultimately needing attorney review, in addition to helping you make better decisions about your strategy. 

Review

Here is the most expensive part of the discovery process.  As the name indicates, this phase involves attorneys reviewing documents for relevance and attorney/client privilege.  According to a study called "Where the Money Goes" by the RAND Institute for Civil Justice in 2012, the review of ESI accounts for 73% of the cost of producing electronic documents. The report concluded that the use of technologies such as TAR can lead to significant cost savings.  In one study, where they compared traditional linear attorney review to TAR, attorney review time was reduced by 80 percent. 

Production

After the ESI has been collected, processed and reviewed you will need to produce the relevant documents.  Due to the complexity involved in the processes involving ESI, The Federal Rules of Civil Procedure (FRCP) have evolved over time to include increasingly specific requirements related to electronic discovery practices, including forms of production.  In general, the FRCP encourages parties to collaborate early and often, including reaching an agreement on the specific form of production.  

Presentation

Last, but not least, is the presentation of evidence at depositions, hearings and trials.  In the past, exhibits were presented in paper form and then as technology evolved, exhibits were commonly presented in "near-paper" form (aka an image do you mean such as a digital image?).  The technology keeps evolving and these days, you need to be prepared to potentially present exhibits in their native format in addition to the older formats.  

Closing

eDiscovery can be complex, but it is an essential part of the legal process.  Attorneys need to invest the time in becoming experts in the process, so that they can avoid potential significant consequences for themselves and their clients.