Electronic discovery, or E-Discovery, refers to the process in which electronically stored information (ESI) is searched, located, and secured with the intent of using it as evidence in a legal proceeding. ESI includes things such as emails, documents, presentations, databases, voicemail, audio and video files, social media, and websites. Basically, it incorporates anything stored electronically. In lots of ways, it is no different than regular discovery processes in a civil or criminal case. The main difference is in the sheer volume of documents and information that it encompasses and produces. So when is e-discovery used and why? Here we provide a basic guide to understanding e-discovery.
When and why is it used?
E-discovery is used before trial in the discovery phase of litigation, Freedom of Information Act requests, government investigations, or any other legal proceeding where information is sought in electronic format. It is subject to the same rules of civil procedure as traditional discovery and often involves additional review before it is turned over to the requesting party.
Processes are complex because of the sheer volume of data that ESI can produce. Unlike hard copy evidence, ESI contains additional information such as metadata, time-date stamps, author/recipient info, and file-specific properties. Therefore, it is essential to preserve the original content and metadata in order to avoid potential claims of destruction or tampering with evidence later in the case. Such additional ESI can play an important part of evidence on its own. For example, electronic date and time stamps are useful in copyright cases to help determine who has the better claim.
E-Discovery Stages of Process
E-discovery follows a process not unlike traditional discovery. The states of processing ESI is generally as follows:
- Identification
First, potentially relevant documents are identified for further analysis and review. This involves identifying those who are actually in possession of potentially relevant information or documents. Since the scope of data can be overwhelming in this initial phase, attempts are made to reduce the overall scope.
- Preservation
Next, a duty to preserve is imposed, which technically begins when there is some reasonable anticipation of litigation. This duty to preserve places any data identified as potentially relevant to the case in a legal hold. Legal holds insure that the information cannot be destroyed.
- Collection and Processing
Following preservation, the parties can begin collecting the ESI. Collection involves the transfer of ESI from whoever has it to legal counsel, who then determine its relevance. Also within this stage is the processing of the ESI. Here, the original files are prepared to be loaded into a document review platform. Often, this phase also involves the extraction of text and metadata from the original files. During this, techniques are employed to help limit the amount of ESI, such as programs that catch and remove duplicate documents.
- Review
During review, documents are reviewed for relevance to discovery requests made and to determine if any privileges apply that should keep the ESI out of evidence. Different document review platforms and technology assist in certain elements of this process, such as rapidly identifying potentially relevant documents.
- Production
Finally, the relevant documents are turned over to opposing counsel. This means that the documents are presented in a file that can be loaded into another document review platform.
As you can see, the E-Discovery process is complex; and this is just an overview. At Integrated General Counsel, we have the experience to help your company with its complex e-discovery needs. Contact us today to find out more.
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