Document review is a vital phase of any legal case. And with the amount of digital information pertaining to legal situations, mishandling eDiscovery can sink your case.
This guide defines and explains all you need to know about eDiscovery (also referred to as electronic discovery or e-Discovery) for all those involved in the investigative and litigation processes of a case.
After reading this guide you should have:
eDiscovery (electronic discovery) refers to a legal process of “discovering” electronic data which is potentially relevant to litigation.
This can refer to a variety of file types and includes text and images. Since the world has moved further toward electronic communications, legal professionals have found that such files account for a much greater proportion of discovery documents.
We see over history that all forms of evidence can be crucial to uncover the truth and come to a fair resolution of legal disputes. This search for truth is one of the values of the U.S. legal system.
The United States, among other countries like Canada and UK, allows parties to subpoena the opposing party or even a third party for documents. This is not the case in many other countries.
The 2006 amendments to the Federal Rules of Civil Procedure included a specific provision that declared electronically stored information (ESI) to be discoverable in U.S. litigation.
Nowadays, almost all information that was once managed as paper documents is now stored electronically.
The rise of technology has created a growing need for attorneys and legal teams to have the baseline technological proficiency to review these documents, understand the metadata behind them and ensure proper discovery of all potentially relevant information.
The most common form of electronic evidence is email, but eDiscovery can extend far beyond that to a range of data types that could be drawn from a desktop, server, cloud platform, mobile device, or even an internet of things device.
*Key term alert: Internet of things
This refers to the interconnection via the internet of computing devices embedded in everyday objects, enabling them to send and receive data.
A party in a legal dispute will issue a request to another party for the production of documents using rule 34 of the Federal Rules of Civil Procedure (FRCP). The party which received the request now has an obligation to produce (thereby delivering to the requesting party) all documents relevant to the case.
We'll call these two parties 1) the requesting party and 2) the producing party. The requesting party and the producing party must cooperate and work together under rule 26 of the Federal Rules of Civil Procedure (FRCP), to agree on discovery terms and a discovery plan.
This begins the formal eDiscovery process. At this point, the attorney of the producing party will interview stakeholders and likely owners (custodians) of relevant data sources to identify, preserve, and collect potentially relevant documents.
This is where an eDiscovery tool will come into play. All collected documents will be processed into a tool like Digital WarRoom to extract all metadata held within these files for easy searching of keywords and filtering of metadata.
Before you process data into an eDiscovery platform, it is important to closely vet the vendor security standards to ensure that the privacy and confidentiality of client data are maintained.
Document review tends to be the most time-consuming and expensive part of eDiscovery. This will involve culling and analyzing the data to find pockets of information that are relevant to the case.
To meet obligations, the document reviewer will ultimately need to make a decision on each document of whether the document is relevant (and must be produced), not relevant, or privileged.
The ultimate goal is to produce all relevant documents to the requesting party with the exception that certain documents can be withheld due to privilege. This final deliverable of relevant documents is known as a production.
The requesting party will receive the production from the producing party and process it into their own eDiscovery tool for review purposes. The production will then be narrowed down into a selection of exhibits that can be submitted to be used as evidence in trial.
Identify and validate all potentially relevant sources of electronically stored information (ESI).
Issue legal holds and stop the intended or unintended destruction of potentially relevant ESI or associated metadata. Though ESI is routinely deleted as a usual business practice, certain cases can be considered spoliation (ruining or destroying discoverable evidence), which can result in sanctions.
Acquire potentially relevant ESI in a forensically sound manner to protect it from alteration or manipulation.
Upload ESI to an electronic discovery software tool. The tool will extract metadata for filtering and index plain text so that your discovery documents can be searched by keywords.
This is the focus of the process. This is when the legal team must make a range of decisions on each document. Is the document responsive? Privileged? Is the document subject to a protective order? Attorneys must determine what’s relevant while protecting privileged information from being inadvertently delivered to opposing counsel.
Examine trends in your data set using early case assessment tools to align your workflow with your risk and budget management strategies. Look for patterns, key subjects, etc.
Disclose ESI relevant to the investigation in agreed-upon formats while not producing privileged documents.
The eDiscovery process doesn’t always begin with a request for the production of documents. Case law in the U.S. has determined that the moment litigation is impending or foreseeable, both parties are subject to an obligation that they must not delete data or destroy evidence relevant to the incident. The intentional destruction of evidence is called “willful spoliation.”
We see eDiscovery and spoliation as themes in high-profile cases over the last 30 years. In 1989, Ollie North deleted an email that implicated him in the Iran Contra affair. In 2015, Tom Brady destroyed his cellphone resulting in a willful spoliation sanction during the “Deflate-gate” investigation. Following these spoliations, both public figures soon learned of their “duty to preserve”.
Even when all parties are entirely compliant with their preservation duties, eDiscovery can still be complicated, especially because most litigation occurs between companies rather than between individuals.
Where is all the data located? How should the data be collected? How is the legal team going to review all this data before the court deadline?
Today, nearly every area of our lives are tracked and recorded in a digital fingerprint which could be potentially used as electronic evidence.
As you can infer, eDiscovery has a reputation for being expensive, time-consuming, and overly technical, which historically has left the door open for large firms and corporations to weaponize eDiscovery by piling documents onto their under-resourced opponents.
There is one cliché eDiscovery tactic that creates a “needle in the haystack” situation to overwhelm smaller legal teams. In the 2000s these tactics were propped up by the “pay to play” expensive pricing situation within the eDiscovery services industry.
Back then, a third-party forensics expert and an outside document review team were required to conduct any sort of eDiscovery in a defensible manner.
However, as electronic communication has become the primary source of communication across industries and private life, case law has begun to adapt accordingly.
The eDiscovery industry has changed. New affordable pricing and new proficiency standards are held within the majority of federal, state, and even local courts.
One reason for the shift in ideology is that discovery technology to process, review, and produce documents is now readily available for you to do yourself. Rather than hiring an expensive staff of researchers and analysts, the software handles the majority of the labor. And all this is priced within a reasonable budget for small to mid-sized law firms, businesses, and organizations.
To build off that, the majority of states now require a mandatory duty of technological competence – also mirrored in ABA Model Rule 1.1.
eDiscovery is moving more into the mainstream of the legal field. And since attorneys have a duty to best represent their clients, this means gathering all the information and knowing the requirements.
As we noted, attorneys have a duty to their clients to gather and process information that could benefit their case. Additionally, to ensure competence, there has been a shift in rules and obligations.
More and more states are adopting statutes and court rules addressing the discovery of electronically stored information. A decade ago, only 14 states (including DC) had not enacted any rules changes that address the discovery of ESI. Today, only 3 states remain without specific laws on ESI and eDiscovery. They are:
However, we should note that many judges have also created their own forms for use in their courtrooms, or have crafted their own protocols for eDiscovery.
Legal evidence and the corresponding discovery process have become overwhelmingly electronic. As an attorney, you’re obligated to seek out any data out there that could help you serve your client. Luckily, eDiscovery software solutions exist to provide law firms with countless benefits and advantages over manual review.
Legal professionals must keep up with the drastic rise in the creation and use of electronically stored information (ESI). And review is where your team will spend most of their time during an electronic discovery project.
An eDiscovery tool and corresponding eDiscovery workflow allow law firms and legal teams to meet obligations while managing budget and risk. Digital WarRoom is an eDiscovery software tool that can be deployed as a cloud-based eDiscovery solution or installed on-premise on a local machine.
This software is fully do-it-yourself (DIY), meaning legal professionals can process, review and produce electronic documents within a single end-to-end platform without the need for a third party to intervene.
Digital WarRoom (DWR) offers subscription options for hosted or on-prem implementation. And each subscription uses the exact same software application. While DWR desktop and cloud interfaces are identical, hosted subscriptions benefit from "under the hood" efficiencies and improved processing speeds which are optimized on our servers.
Subscriptions may vary on pricing metrics and included benefits. See our pricing page, features page, or specific product pages linked below for more info.
The newest generation of eDiscovery software applications reside in the cloud and are the easiest to use without concerns about infrastructure and support. A hosted model mitigates some of the headaches traditionally associated with insourcing eDiscovery.
For example, multi-factor authentication has become standard in such applications, eliminating threats from weak passwords. Furthermore, you don’t need to apply software updates or worry about data backups or disaster recovery.
After collection, which you may still need to outsource, you upload the data for processing, including indexing for keyword searching, and filtering for relevancy. Standard features include tools for reviewing and tagging documents, creating privilege logs, redacting text as needed, producing responsive documents in a variety of formats, and creating document sets for expert interviews or deposition preparation.
Although today’s eDiscovery software is accessible and designed to be “DIY,” you don’t always want to go it alone. Thus, to increase efficiency and deliver better results, law firm eDiscovery teams need competency in running the platform.
It’s best practice to select a software provider that provides some level of training and support at no additional cost. Ideally, this will include project management assistance when needed. Building up internal expertise around the software reduces risk, and eDiscovery software companies should want to partner with their clients to achieve that goal.
Digital WarRoom offers a range of pricing options to meet different market needs, including a desktop Windows app with a flat per year cost for unlimited use.
For hosted solutions, Digital WarRoom focuses on cost control and transparency via a feature-based subscription pricing model. For example, an annual subscription for unlimited cases costs $2,000 per month for up to 500 GB of data. This works out to $4/GB/month when maxed out. Additional storage costs $1/GB/month. A Digital WarRoom law firm customer with more than 1.5 TB of data would translate to just $2/GB/month.
eDiscovery (electronic discovery) is a critical process that occurs early in civil litigation matters and involves the exchange of information between parties involved in a lawsuit or some other legal action. As we move further toward exclusively electronic data and communication, the burden on attorneys and legal teams to identify, collect, and produce electronically stored information (ESI) increases.
However, new software options can streamline the process effectively and affordably for attorneys and legal teams of all sizes. Learn more about Digital WarRoom eDiscovery Software today.