eDiscovery (electronic discovery) refers to a legal process of “discovering” electronic data which is potentially relevant to litigation.
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 allow parties to subpoena the opposing party or even a third party for documents which 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. Now, almost all information which 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.
A party in a legal dispute will issue a request to another party for 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 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 in order 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 so as 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 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 to 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 which can be submitted to be used as evidence in trial.
Identification: Identify and validate all potentially relevant sources of electronically stored information (ESI)
Preservation: Issue legal holds and stop the intended or unintended destruction of potentially relevant ESI or associated metadata
Collection: Acquire potentially relevant ESI in a forensically sound manner
Processing: 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.
Review: Make a range of decisions on each document – Is the document responsive? Privileged? Is the document subject to a protective order?
Analysis: Examine trends in your data set using early case assessment tools to align your workflow with your risk and budget management strategies
Production: 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 email which implicated 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 is 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. This is one cliché eDiscovery tactic which 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.
The eDiscovery industry has changed - new affordable pricing and new proficiency standards 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 it yourself; and all this is priced within the 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 attorneys have a duty to best represent their client, which means gathering all the information and knowing the requirements.
Rule 1: Just, Speedy, and Inexpensive
Rule 26 (b) (1) - Scope and Proportionality (Link)