The Federal Rules of Civil Procedure (FRCP) guide legal teams with the ground rules that govern eDiscovery. Unfortunately, the process of electronic discovery is hardly straightforward or simple.
This process of obtaining and exchanging electronic evidence is key in any legal case or investigation. But it is also often the most laborious, time-intensive, and costly phase of litigation.
To help guide you through eDiscovery and access the tools that make it less painful, we’ve compiled a high-level overview of the various stages and software to aid in this process. Read on for our ultimate guide to eDiscovery, updated to meet the tech and laws of 2022.
eDiscovery: The Basics
Think back to the exciting days of your Civil Procedures course in law school. Fun, right? As you may recall, the FRCP govern the procedure for civil lawsuits at a federal level, while each state also has its own statutes that stand as law in state court, typically modeled after the federal guidelines.
In 2006, the Supreme Court amended the FRCP to adapt to a world of rapidly developing technologies. They redefined discoverable materials, added the concept of “reasonably accessible” to address electronic access to content, and perhaps most notable included the phrase “electronically stored information” (ESI).
To further update and enhance the rules governing this growing field of eDiscovery, the Supreme Court amended the rules again in 2015. This time they also addressed negligence in regard to the failure to preserve ESI as well as established some reasonable limits for the scope of discovery.
Key Terms Related to eDiscovery
- Deduplication: Also known as “DeNISTing,” this refers to techniques for removing duplicate files from a collection of documents to reduce data.
- Keyword Search: This is the most common approach for searching document collections.
- Load File: This refers to the file used to import data into a database.
- Metadata: This is the data about the data. It can include information such as the author, recipient, creation date, and modified date, along with other potentially important data.
- Native File: This refers to a file in its original file format before it may have been converted to a digital image or another file format such as TIFF, JPEG, or PDF.
- Processing: The data for a case must be narrowed down, converted, and prepared for analysis and relevance review. This data must therefore be imported into a software platform for analysis and production.
- Production: The data uncovered in discovery can be produced to opposing parties in a variety of formats. For example, image files like TIFF, file formats like PDF, or other native formats. Legal teams must determine which format works best for their needs.
- Personal Storage Table (PST): This is a common file format used to store messages, calendar events, and other items within Microsoft software.
The two primary rules relating to eDiscovery are FRCP Rule 26 and Rule 34.
Rule 26 sets the ground rules for discovery. It requires parties to keep their discovery requests reasonable and proportional to the matter at hand and creates a structure for the 26(f) Conference - the meeting between the two legal sides that takes place before discovery begins.
Rule 34 provides for discovery and inspection of documents and other evidence in the course of developing a civil case for trial. This rule allows the requesting party to decide how it wants information to be produced. Though it also lets the responding party object if the request is unnecessarily impractical.
The most common challenge of the eDiscovery process is the sheer volume of data. But it doesn’t have to be the massive headache it often is for legal teams!
While in the past, hard copy documents were the norm, with ESI opposing counsel can “reasonably” request thousands or even millions of document files. Digital evidence has become a huge part of both civil and criminal cases, and that isn’t going away. Instead, legal teams need to adapt and face the issue with better technology and planning.
The eDiscovery Process
There are 9 stages of the Electronic Discovery Reference Model (EDRM), a system designed in 2005 to help organize and describe the eDiscovery process. It could use some tweaking and updating, but for now, it remains the most useful and accepted description of this process.
The nine stages of the EDRM are:
- Information Governance - A way to reduce eDiscovery costs by managing ESI from creation through disposition.
- Identification - Finding and locating sources of ESI, defining the amount of discoverable data, its custodians, and its location. This addresses finding the ESI and also addressing its potential scope.
- Preservation - ESI must be discoverable and not altered or destroyed.
- Collection - ESI must be collected using forensically sound methods to meet preservation rules.
- Processing - ESI may be converted to file forms for easier review and analysis, but native files must be preserved for potential forensic examination.
- Review - This is the true purpose of all this discovery work. Attorneys review data and evidence to collect relevant information while protecting privilege.
- Analysis - This is when attorneys analyze data to identify key subjects, patterns, custodians, and discussions.
- Production - Attorneys must deliver ESI to opposing counsel in appropriate forms.
- Presentation - After all the ESI has been reviewed, only key elements will actually be presented as part of a deposition, hearing, or trial. It can be used to support witness testimony, reinforce key facts asserted by the legal team, or even be used to sway a jury.
How Technology Simplifies eDiscovery
We’ve all seen the movies and TV shows of lawyers preparing for trial by digging through a room of bankers' boxes full of documents. While digging through ESI doesn’t give the same visual punch, it actually involves MUCH more data than ever before.
That’s where discovery software has entered the picture. While sorting physical documents can be physically demanding and difficult, digital sorting has some advantages. So while data volume has vastly increased, methods to sort and search data have improved with the use of discovery software.
Just like you can search the internet for a key term and search engine algorithms help strip out the junk to present useful findings, discovery software aims to deliver pertinent data. Finding the right software can make a huge difference in quickly culling data for case success, while also saving your client money.
eDiscovery software is designed to help legal professionals more easily handle electronic documents in discovery and investigations. These tools can automate common eDiscovery steps by electronically streamlining things like data ingestion, file indexing, optical character recognition (OCR), and preparing documents to be reviewed and produced.
A key component of eDiscovery is the preservation of data, as pertains to the FRCP. Additionally, legal holds come into play during this process. It’s important to understand how technology and the law intersect at this stage.
What is Litigation Hold?
Also known as “legal hold,” this is the process of preserving potentially relevant information during pending litigation. When a party or organization issues a legal hold they are directing the data custodians of their duty to preserve (i.e. not delete or dispose of) ESI and hard files that could be relevant to the case.
The Process of Litigation Hold
Litigation hold is more than just a notification of responsibility - it’s a multi-step process. The 5 main steps are:
- Identification of Information - The legal team will determine the information, typically ESI but sometimes physician documents, included in the legal hold.
- Identification of Custodians - This refers to determining who is in possession of the information included in the hold.
- Legal Hold Notice - The issuance of the legal hold notice makes it official. Communication is sent to all custodians to notify them of the hold and specify the data that must be preserved.
- Reminder Notice(s) - These are issued to remind custodians that the legal hold is still in place, or to elicit an acknowledgment of the hold from the custodians.
- Release - When the legal matter has concluded, the issuing party must notify the custodians that the hold has been released and their duty to preserve data has ended.
Software for Legal Holds
Like other aspects of discovery, legal holds should be well-organized and secure. With the help of technology, that is much simpler than it once was. Legal hold software can be used to send notices, track data, and communicate across teams. It is a highly useful aspect of eDiscovery software.
Information governance is the specification of rights and an accountability framework to ensure appropriate behavior in the creation, storage, use, archiving, and deletion of information. It’s used across industries to organize and protect data and help businesses make decisions.
Storing and Evaluating Data
Part of information governance is an organization’s policies regarding data storage and disposal. These policies differ across industries, such as banking, healthcare, and education. Therefore, many companies utilize information governance oversight committees to evaluate policies and ensure that information is stored appropriately or disposed of legally.
Legal and Defensible Disposal of Data
Defensible disposal of data is part of an organization’s records management strategy. It is about being able to defend the disposal policy as an organization. Defensible disposition rids businesses of information that no longer has a business or legal value without employees having to involve themselves in classification.
Therefore, lawyers must find a way to dispose of information without creating greater business and legal problems for their clients. A defensible disposition strategy solves the problem of data over-retention.
Data Mapping with eDiscovery Software
The process by which a legal team creates an inventory of potentially relevant ESI is called data mapping. Data mapping is a vital step in enabling organizations to prepare for the rigors of eDiscovery data management by locating and characterizing the types of ESI they use.
Essentially, a data map is a list, table, spreadsheet, or database used to collect and organize ESI. It’s a way to take inventory of the types of potentially relevant ESI and attach relevant and important information, such as who are the custodians.
Data Assessment and Document Review
Early data assessment (EDA) is a fundamental step in eDiscovery. It allows involved parties to better understand what the case data -both ESI and physical documents- will entail prior to processing.
Part of this process includes selecting and testing keywords and phrases that will be used to search data collections made available in discovery.
Preparing for Discovery: Data Assessment
The data assessment stage is a perfect time to utilize supportive software. eDiscovery software can automate the process of culling unnecessary documents and focusing in on data that matters.
Such analytic tools can help identify keywords and phrases to find the most responsive documents and clarify scope. Therefore, the best eDiscovery software will include options for EDA.
How to Create a Document Review Plan
Creating a document review plan can be instrumental in breaking down the review process, which is typically the most complex -and expensive- part of eDiscovery. However, creating a guide to this process can help a legal team cut through the noise, so to speak.
A document review plan should lay out the facts of the case, include the specific search terms that have been defined for use in review, and establish codes for marking responsive, non-responsive, privileged data, etc. It should also include a quality control program to guide the entire process.
With so much data to cover during eDiscovery, a legal team’s worst nightmare is to inadvertently share privileged information that can sink a case. Although you may be able to request the return of such documents or have them stricken from the record, once the information is out there you can’t do a whole lot about it.
Therefore, legal teams must protect privilege in the eDiscovery process. Protected records include documents prepared by the attorney, the client, or an agent for either party that were made for the purpose of giving or receiving legal advice.
Negotiations about production format should have already occurred by the time documents are being prepared to be produced. When the two sides meet for the 26(f) Conference, which takes place at least 21 days before, they can hash out any issues related to disclosure or discovery of ESI, including the form in which it is produced.
Practically speaking, the agreement regarding the form of production must be made at the initial stages of the electronic discovery process to ensure that this chosen form is still an option after the collection, processing, and review is complete.
Technology: AI and Predictive Coding
Predictive coding is a way to automate the document review process using artificial intelligence (AI) to “teach” machines to find data using algorithms. There are a variety of predictive algorithms.
What is TAR and How Does It Work?
Technology-Assisted Review (TAR) is a broad category that encompasses many different technologies. Predictive coding is just one example of TAR.
The TAR process includes 6 main steps:
- Generating a Seed Set - This takes place after the initial data culling step in discovery. To create a workflow, the reviewer will select a coding sample from the review set. The subject matter expert will label these documents as relevant or non-relevant, allowing the machine learning algorithm to understand how to distinguish future documents accordingly.
- Generating a Control Set - At the beginning of the process, reviewers will code a random sample of documents. These are used as a control to measure the effectiveness of the machine algorithm.
- Creating a Predictive Formula - The predictive coding software will analyze the seed set and generate an algorithm for predicting the responsiveness of future documents.
- Refining the Algorithm - This process requires repeated updates and adjustments with additional examples of coded documents in order to refine the algorithm and improve output.
- Applying the Predictive Coding to the Entire Review Set - After sufficient refinements have been made, you can apply your algorithm to the entire review set to locate the more relevant documents.
- Manual Final Review of Automated Results - A human will have a final, manual review. An attorney with review experience should evaluate the results and refine the search methods to verify and control quality.
Benefits of AI as a Tool in eDiscovery
Technology is advancing rapidly in all areas of industry. eDiscovery is no different! New software and AI tools have been designed to aid in eDiscovery in simple, easy-to-use ways.
Because there are now so many options for affordable and user-friendly tools, you’d be crazy not to employ them to assist in eDiscovery. They can easily save thousands of dollars in review costs and help better plan for and organize discovery data.
Additionally, using such eDiscovery software cuts down on the number of review experts and even IT staff you would otherwise need on your team, which can be challenging in today’s market. Instead, a review expert can oversee other legal professionals who can handle tagging and refining data to guide the algorithm.
eDiscovery Software in 2022
When technology was first introduced to support discovery proceedings, the machine learning was not easy to use and manage, nor was it affordable. But in 2022 that’s about as far from the truth as you can be.
In fact, the technology is becoming easier to use and more accurate. For example, continuous active learning is a recently developed TAR software that doesn’t even require a seed set. Instead, the algorithm automatically learns based on the (human) reviewer’s decisions and input. The system becomes sharper and more accurate as it received human input and generates better data as a result.
Digital WarRoom (DWR) offers patented AI technology designed to learn from your initial review decisions and either mark documents for you or prioritize likely-relevant documents. DWR’s “Gist TAR” memorializes rule sets derived from attorney decisions and can apply the framework to a new or expanded data set. This reusable framework holds the potential for enormous cost savings for organizations involved in serial litigation situations.
Cloud-Based eDiscovery Tech
Cloud-based services are optimal because they can scale to meet any sized challenge. Digital WarRoom Private Cloud is the ultimate eDiscovery suite. The scalability of its Cloud-based service allows a system to access resources needed to accommodate larger workloads or to free up resources when they are not needed.
Cloud-based eDiscovery software can also provide vital security. Your data is most at risk when it's in motion. And unfortunately, the eDiscovery workflow is a process of continuous motion. However, a secure, cloud-based platform can encrypt data -even in motion- providing important safeguards against hackers.
DWR’s Private Cloud subscription includes Management Console, and all the other key software elements we’ve highlighted throughout this guide, including but not limited to: unlimited client data processing, early case assessment (ECA), document review tool, privileged review and logging with redaction tool, robust production features, and additional support for depositions, exhibits, and even clawbacks.
Finding the Right Software
While the options for eDiscovery have increased and improved, that can sometimes make choosing a software for your firm seem overwhelming.
Here are some questions that can help you narrow down your needs:
- Is the workflow design flexible and adaptable to your firm’s needs?
- Which processes are automated?
- Would you need to rely on a third party or additional vendor for anything?
- What’s the vendor’s longevity? Will they still be in business through a lengthy discovery process?
- Is the application user-friendly and easy to use?
- What does start-up entail? Is it quick or do you need to wait on a support team?
- Is the software defensible in court, if necessary?
- Does the platform protect your data both while in motion and at rest?
- Can the software scale easily to handle your firm’s growing case volumes?
- Is the workflow flexible and easy enough to adjust to handle different case and matter types?
- What is the pricing structure? What is included, and what is an additional fee?
Before you ask these questions, determine your firm’s priorities and consider how you might weigh the responses. That will help you narrow down options as you speak with eDiscovery vendors and select a solution.
Comparing eDiscovery Vendors and Solutions
Finally, as you compare vendors and solutions, it all comes down to the bottom line: cost. Make sure to look out for hidden fees. Both traditional vendors and cloud-based providers can include fees, so be sure to inquire about them.
For example, DWR has no processing fees EVER, along with unlimited email support. So be sure to follow due diligence as you compare eDiscovery vendors and solutions, and revolutionize the way your firm handles eDiscovery.