An Introduction to eDiscovery: The Basics
April 20, 2023
Electronic discovery, also known as eDiscovery, has become an essential component of any modern legal practice. With the rise of digital communications and the increasing use of electronic devices, the volume of electronically stored information (ESI) has exploded. That means lawyers have countless new platforms from which to collect client information and evidence before legal proceedings begin. Traditional paper-based discovery methods are no longer sufficient, and legal professionals need powerful eDiscovery software to help them process and review vast amounts of case-related digital data.
In this blog post, we’ll take a closer look at what eDiscovery is, how the practice has evolved over the past several years, and how technology has emerged to support the discovery efforts of modern legal teams.
What Is eDiscovery?
Electronic discovery, or eDiscovery, refers to the process of identifying, preserving, collecting, processing, reviewing, and producing electronically stored information (ESI) in response to a legal or regulatory request. With the increasing volume and complexity of electronic data in today’s digital age, eDiscovery has become a critical component of legal and regulatory compliance. The eDiscovery process involves a range of technologies and techniques, including data processing and analytics, review and coding tools, and secure document production and management. Effective eDiscovery requires careful planning and execution and a deep understanding of the legal and regulatory requirements and obligations that govern the discovery process.
The History and Challenges Behind eDiscovery
The history of eDiscovery can be traced back to the emergence of electronic data and the use of computers in business and legal contexts. Before electronic information was so widely available, the discovery process was largely focused on paper documents, with lawyers and litigants formally requesting and reviewing physical files and documents.
However, with the increasing use of computers and digital technologies in the 1990s, the volume and complexity of collected data grew rapidly, and the discovery process needed to adapt to keep pace. The term “eDiscovery” was first coined in the early 2000s to describe this new process of electronically identifying, collecting, and reviewing relevant data in legal proceedings. With this shift, legal professionals could seek out discovery documents with fewer barriers, making it easier and faster to complete the discovery process.
The 2006 amendments to the Federal Rules of Civil Procedure in the United States played a significant role in shaping the development of eDiscovery as a formal process. These amendments clarified the rules and requirements for electronic discovery and established a set of guidelines for the handling of electronic data in legal proceedings.
Over the past three decades, some of the most famous legal cases have relied on eDiscovery data:
- Iran Contra: In perhaps the first example of eDiscovery being used in legal proceedings, an incriminating email was paramount during Oliver North’s trial for lying to Congress about his involvement in the Iran-Contra Affair. North deleted emails from the server at the National Security Council, which were later recovered and used as key evidence in his trial.
- Microsoft trial: In 1998, Microsoft was tried for its attempt to form a monopoly. Bill Gates’ emails were crucial evidence in proving Microsoft’s intent to sabotage competitors.
- Deflategate: In 2015, the New York Patriots were taken to court for tampering with footballs in an attempt to win more games. eDiscovery was a key component in the legal proceedings, as Tom Brady was charged with obstruction of justice for asking his assistant to destroy a cell phone with incriminating evidence on it.
- Clinton emails: A popular point of contention in the 2016 Presidential Election, Hilary Clinton’s legal team deleted emails from her personal email server, which were later recovered and reviewed during Congressional investigations.
The Rise of eDiscovery Software
As eDiscovery became more widely used, a range of new technologies and tools emerged to support the process. Early eDiscovery software was often complex and expensive, requiring specialized expertise to operate. However, as the technology matured and became more accessible, a range of user-friendly and cost-effective options became available.
Today, eDiscovery has become an essential part of legal and regulatory compliance, with organizations across a range of industries relying on eDiscovery software to manage the growing volume of electronic data. The process has continued to evolve, with new technologies and techniques emerging to improve the speed, accuracy, and efficiency of eDiscovery.
What Is eDiscovery Used For?
eDiscovery is used to produce digital evidence, or electronically stored information (ESI), in response to a legal or regulatory request. This process is used to support litigation, investigations, and regulatory compliance and is designed to help organizations manage the growing volume and complexity of potentially relevant documents. eDiscovery software is used to automate and streamline the process, improving the accuracy and efficiency of data identification, collection, and review. By using eDiscovery software, organizations can better manage the risks and costs associated with electronic data while ensuring compliance with legal and regulatory requirements.
The Benefits of eDiscovery Software
The use of eDiscovery software offers numerous benefits to organizations that need to manage large volumes of electronic data for litigation or regulatory purposes. Here are some of the key benefits of using eDiscovery software:
Efficient and Accurate Data Collection:
eDiscovery software streamlines the data collection process by automatically identifying and collecting relevant electronic data. This saves time and resources compared to manual collection methods and helps to ensure that all relevant data is collected accurately.
eDiscovery software can significantly reduce the costs associated with the discovery process by automating many of the time-consuming manual tasks involved in data identification, collection, and review. By eliminating the need for manual review and coding of large volumes of data, organizations can save on labor costs and reduce the risk of errors or oversights.
Improved Data Analysis:
eDiscovery software provides advanced analytics and data visualization tools that can help organizations identify patterns and insights in large volumes of electronic data. This can be particularly useful in complex litigation or regulatory matters, where the ability to quickly analyze and interpret large amounts of data can be a critical advantage.
eDiscovery software allows multiple stakeholders to access and work with electronic data in a centralized platform, improving collaboration and communication throughout the discovery process. This can help to reduce the risk of miscommunications and delays and ensure that all relevant parties have access to the same information.
eDiscovery software offers robust security features that help ensure electronic data’s confidentiality and integrity. This includes role-based access controls, encryption, and audit trails that track all actions taken on electronic data. By using eDiscovery software, organizations can improve the security and compliance of their data management processes.
Greater Control and Oversight:
eDiscovery software provides organizations with greater control and oversight over the discovery process, allowing them to set clear guidelines and standards for data collection, review, and production. This can help to reduce the risk of errors, oversights, or non-compliance and ensure that all relevant data is collected and produced in a timely and efficient manner.
Overall, eDiscovery software offers a range of benefits to organizations that need to manage large volumes of electronic data for litigation or regulatory purposes. By automating and streamlining the discovery process, organizations can improve efficiency, reduce costs, and ensure compliance with legal and regulatory requirements. Additionally, the use of advanced analytics and data visualization tools can provide valuable insights and strategic advantages in complex legal matters.
Types of Electronically Stored Information (ESI)
Electronically stored information (ESI) encompasses a wide range of digital data that can be relevant in the discovery process. ESI can include:
- instant messages
- text messages
- social media posts
- audio and video files
- other forms of electronic communication or data storage
ESI can be located on computers, servers, mobile devices, cloud storage, and other electronic media. Understanding the types of ESI and how they are stored is essential to effectively managing and producing digital records in response to legal or regulatory requests.
What is the eDiscovery Process?
Generally, eDiscovery takes place throughout a given legal conflict, including lawsuits, complaints, or administrative hearings. There are three overarching parts to the eDiscovery collection and review process:
Attorneys, government agents, auditors, and managers review electronic records to identify potential conflicts and relevancy. Any data deemed relevant is placed on legal hold.
Negotiation determines how broad the scope of eDiscovery will be for a given case. Each party participates in the process, identifying relevant ESI, making eDiscovery requests, and challenging any requests they find irrelevant.
Lastly, legal teams analyze the relevant evidence using digital forensic procedures. They might rely on machine learning, predictive coding, computer-assisted review, and other techniques to identify trends and patterns and conduct deeper levels of analysis.
Understanding the EDRM: 9 stages of eDiscovery
In 2005, the Electronic Discovery Reference Model (EDRM) was created by consultants George Socha and Tom Gelbmann. This model is the most widely accepted outline of the eDiscovery process, serving as a guide for most (but not all) legal cases.
The EDRM is made up of nine stages:
1. Information Governance:
A newer addition to the EDRM, information governance involves strategically reducing eDiscovery costs before litigation occurs by maintaining more oversight over ESI from initial creation to final disposition.
The first step in the eDiscovery process is identifying the electronically stored information (ESI) that may be relevant to the matter at hand. This can involve identifying key custodians, data sources, and search terms to be used in the search for ESI.
The once relevant information has been identified, it must be preserved to ensure that it is not accidentally or intentionally destroyed. This can involve issuing litigation holds to relevant custodians and implementing procedures to prevent the loss of data.
After ESI has been identified and preserved, it must be collected in a forensically sound manner to ensure that it is admissible in court. This can involve imaging hard drives, collecting data from servers or cloud storage, and/or collecting data from mobile devices or other electronic media.
Once ESI has been collected, it must be processed to prepare it for review. This can involve de-duplication, file format conversion, and other data processing tasks.
During the review stage, legal teams review the processed ESI to identify potentially relevant documents and other data. This can involve using search terms, filters, and other tools to narrow down the data set.
After relevant ESI has been identified, legal teams analyze the data to identify patterns, relationships, and other insights that may be relevant to the matter at hand.
Relevant ESI is produced to opposing counsel or regulatory agencies. This can involve converting the data into a standardized format and producing it in a manner that meets legal and regulatory requirements.
Once ESI has been reviewed for relevance by opposing counsel, a few key documents may be presented at a deposition, hearing or trial. These presentations can support testimony, demonstrate facts, or persuade a jury.
eDiscovery and the Federal Rules of Civil Procedure
eDiscovery is a critical component of the civil litigation process. The use of electronic data and ESI in legal proceedings has become increasingly common in recent years, and the Federal Rules of Civil Procedure (FRCP) have been updated to reflect this trend.
In 2006, the Federal Rules of Civil Procedure were amended to specifically address eDiscovery, with the goal of establishing a uniform set of guidelines for managing electronic data in civil litigation. These amendments recognized the importance of electronic data in modern legal proceedings and sought to provide a framework for managing and producing ESI in a manner that was both efficient and fair.
The amendments to the FRCP included changes to several key areas of civil litigation, including:
The amended rules clarified that ESI was included within the scope of discovery and that parties were required to provide ESI that was relevant to the case, regardless of whether it was stored in-house or by a third party.
The amendments also addressed the issue of ESI preservation, requiring parties to take reasonable steps to preserve relevant data once litigation is anticipated. The new rules established a duty to preserve, which requires parties to take reasonable steps to prevent the loss or destruction of relevant ESI. Production:
The amendments to the FRCP also established guidelines for the production of ESI, including the format in which it should be produced and the obligations of parties to cooperate in the production process.
The amended rules also established penalties for failure to comply with eDiscovery obligations, including the imposition of sanctions and adverse inferences.
The rules were amended again in 2015 to account for details that were missed in the earlier amendment. Most notably, the 2015 amendment allows sanctions for failure to preserve ESI. Overall, the amendments to the FRCP have had a significant impact on the eDiscovery process, providing a clear set of guidelines for managing ESI in civil litigation.
Emerging Trends in eDiscovery
As technology continues to evolve, so does the field of eDiscovery. One emerging trend is the increased use of artificial intelligence (AI) and machine learning to streamline and automate the eDiscovery process. These technologies can be used to identify relevant ESI, review documents, and even predict case outcomes.
Another trend is the use of cloud-based eDiscovery solutions, which provide greater flexibility and scalability than traditional on-premise solutions. Finally, the rise of remote work has led to a greater need for secure and efficient collaboration tools, which can enable legal teams to work together seamlessly regardless of their physical location.
How Are Digital Forensics and eDiscovery Different?
While digital forensics and eDiscovery are both related to the management of electronic data, they are fundamentally different processes with different objectives.
Digital forensics is the process of analyzing electronic data to identify and recover evidence related to a specific crime or incident. This process involves the use of specialized tools and techniques to extract data from devices and analyze that data for the purpose of identifying potential evidence.
eDiscovery, on the other hand, is the process of identifying, preserving, and producing electronic data in response to a legal request. eDiscovery is typically conducted in the context of civil litigation and is focused on identifying relevant ESI that may be used as evidence in a case.
One key difference between digital forensics and eDiscovery is the scope of the data being analyzed. Digital forensics typically involves a deep dive into a specific device or system to identify evidence related to a particular incident, whereas eDiscovery involves a broader search for all relevant ESI, regardless of where that data is stored.
Another key difference is the legal context in which the two processes are conducted. Digital forensics is typically conducted in the context of criminal investigations, whereas eDiscovery is conducted in the context of civil litigation. As a result, the objectives and legal standards for the two processes are different, and the tools and techniques used may also differ.
Future Legal Discovery
Over the past thirty years, eDiscovery has become an increasingly important part of the legal process. But with an overwhelming volume of electronic documents to review, legal professionals face significant challenges in surfacing relevant information.
That’s why the rise of eDiscovery software has been so important. Law firms now have well-tested tech solutions at their fingertips to streamline the eDiscovery process from start to finish. Whether law firms choose a comprehensive all-in-one platform or a more streamlined and user-friendly tool, the right eDiscovery software can help simplify the discovery process, reduce costs and risks, and improve the overall efficiency of your legal and regulatory compliance efforts.
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