What Is eDiscovery?

What Is eDiscovery?‌

Simply put, eDiscovery (also called e-discovery, ediscovery, or e-Discovery) is the electronic version of the discovery process for litigation. It applies the same rules that govern general discovery requests, except that all the information is digital. Discovery itself requires an exchange of information that is strictly relevant to the case at hand.

Digital data is extremely well-suited to the scope of a discovery investigation. As we integrate technology into our business and personal lives, eDiscovery is becoming the primary method of discovery.

The Process of eDiscovery

There are a number of actions that occur before, during, and after the ediscovery process is put in motion. The first stage involves locating and separating data for later review. Once litigation has begun, relevant data must be separated into its own database or repository to keep it as close to its original form as possible. 

A review of potential eDiscovery data for relevance, privilege, and confidentiality must be conducted. This will allow you to redact or remove those sections as appropriate. It will be essential to tag or mark each document as relevant or discoverable, in preparation for requests from the opposing party. Under the Federal Rules of Civil Procedure, disclosure requires making known whether an electronic document exists, has existed, and if you will allow the opposing party to have access to it.

Next, you must determine the eDiscovery you will request from the opposing party and you need to be prepared to conduct a comprehensive computerized review upon receipt. Because of the voluminous amounts of electronically stored information (ESI) that is subject to request and review, a model for processing was created called EDRM that is used to keep those functions level across the board.

The final stage requires you to produce or exchange the ESI‌ with opposing counsel and to prepare the data for display or presentation in other legal settings.

ESI and eDiscovery

The focus and core of eDiscovery is electronically stored information (ESI), which is virtually anything in a digital format. ESI can be discovered during the litigation process and presented in court as evidence.  

Dynamic electronic documents contain metadata such as author and recipient information, time-date stamps, file properties, when the item was written and sent, or how frequently it was edited. Forensic legal analysts can review this raw data and metadata for potentially hidden evidence.

Examples of purely electronically stored information (ESI) that could serve as relevant evidence in a lawsuit but that were never in a written or hardcopy format include:

  • emails/texts
  • hard drives/servers

search/website history

EDRM for eDiscovery

When eDiscovery is called for in litigation, the EDRM ( Electronic Discovery Reference Model) serves as the framework for processing electronically stored information (ESI) before being presented to opposing counsel.

EDRM lists the customary steps that digital information typically goes through when being prepared for litigation. The legal parties must do the following with ESI:

  • Identify
  • Preserve
  • Collect
  • Process
  • Review
  • Analyze
  • Produce
  • Present

Identification 

During eDiscovery, it is crucial to identify potential sources of ESI and determine its location, scope, breadth, and depth. In order to do that efficiently, your Legal Team’s identification plan needs to rely on tools to identify individuals and data custodians who may have potentially relevant information, like recent contracts, updated databases, latest hiring practices, or internal memos.‌‌

Preservation 

The ESI original content and metadata must be preserved to eliminate claims of spoliation or tampering with evidence later in the litigation.

Collection

ESI must be collected for further use in the eDiscovery process.

Processing

The ESI should be converted into forms that are suitable for review and analysis.

Review

The ESI is evaluated for relevance and privilege. Items may be withheld if protected by some form of privilege, despite being relevant to a case.

Analysis 

This is where the ability to use eDiscovery solutions to search through ESI makes the biggest difference. With the right solution, you can search for keywords, names, dates, and other relevant targets.

Production

The ESI is delivered to others in appropriate forms and through appropriate systems.

Presentation

The presentation of ESI may occur during hearings, trials, depositions, and any other legal or investigatory settings. The presentation is especially effective when presented in native and near-native forms to extract further information, validate or confirm existing facts, or persuade an audience.

Information Governance over eDiscovery

Information governance encompasses the document management system employed by Legal Teams to mitigate risks and expenses during the handling of ESI. Here, eDiscovery solutions like digital contracting and repositories become a key factor, especially in the storage stage of contract management.

Multiple people using various document planning platforms, mobile applications, or communication tools make the gathering of relevant threads of information and data more problematic. If you have contracts in various forms of completion across different departments, managed by different department heads, it makes it practically impossible to know if all relevant data has been identified.    

Information governance usually involves the standard procedures and various policies governing the management of an organization’s information. If digital data is to be collected from a company, it is necessary to recognize how and where a company may store their documents. There’s a chance it could be neatly stored, organized, and collectible, but it could also be scattered throughout the entire organization.

Challenges of eDiscovery‌

Courts, state and federal legislatures, and government regulators have developed rules concerning how organizations identify ESI, particularly for purposes of civil and criminal proceedings, investigations, and audits. 

For example, there does not need to be a formal statement saying that ESI is going to be collected. As soon as litigation begins, all electronically stored information and other evidence relevant to a case must be held and preserved in a separate database to keep its most original form. 

Voluminous eDiscovery requests

The challenge here is in the sheer volume of data that will be collected and exchanged. It’s information that is constantly being created, stored in various locations, and shared with multiple people. Even attempts to delete electronically stored information may not always be permanent.

Without some form of document management system, determining and gathering all the necessary ESI is, at minimum, difficult, and, at worst, unmanageable.

Preserving eDiscovery

A hurdle for Legal Teams is the gathering and preservation of ESI, as they have a duty to take reasonable steps to identify and preserve relevant ESI when an investigation or litigation is reasonably anticipated or pending. 

As a result of this duty, an organization must be able to locate and preserve relevant ESI in a timely manner. Without some sort of eDiscovery solution such as Ironclad, such preservation is challenging, especially when it’s too expensive to hire outside counsel.

Clients and eDiscovery

You should ensure that appropriate litigation hold letters were sent to the correct data custodians within your organization and that these litigation holds have been followed. If litigation holds weren’t ordered or processed correctly, the possibility that relevant documents and ESI will be destroyed is greatly expanded, which might result in the risk of sanctions for spoliation.

Mishandling of eDiscovery

While electronically stored information can be highly efficient to manage, there are still many things that can go wrong. Despite its digital format, ESI, just like its hardcopy predecessors, is subject to mishandling and human error. Files can be altered, corrupted, lost, written over, or accidentally deleted, even when the data and documents have already been preserved. This could be cause for sanctions or other legal remedies in response to the destruction of potentially significant evidence.

Conclusion

Addressing eDiscovery requires parties to be proactive in the management of information and records. To do that effectively requires greater control over the handling of potential eDiscovery requests.

E-discovery solutions can facilitate the e-discovery process by taking extensive amounts of digital data and making it readily accessible in ways that were not previously available to your organization. One of the keys to eDiscovery is having a way to keep documents organized in a searchable repository while your organization goes through the discovery process.

An Ironclad eDiscovery solution will provide a management system for information and records on a digital contracting platform with dynamic and centralized ESI search capabilities, allowing you to sort through relevant documents in mere seconds. Ironclad was named one of the 20 Rising Stars on the Forbes Cloud Top 100 Companies. Ironclad also received the award for Contract Lifecycle Management For All Contracts, Q1 2021 from the leading independent analyst publication, The Forrester Wave™, in 2021. 

Ironclad provides a management system for information and records on a digital contracting platform with dynamic and centralized ESI search capabilities, allowing you to sort through relevant documents in mere seconds. To learn more about digital contracting, request a trial here.

Table of contents