In any legal action, the right to gather and review evidence is referred to as the Discovery Process. In the past, this process usually referred to interviewing people involved in the case and witness testimony, gathering paper records for review from various sources, and obtaining physical evidence for review.
Enter the Internet Age. Since the 1990s, electronic information has become a huge part of the discovery process. It has become such a large portion of discovery it is now referred to as eDiscovery, e-Discovery, electronic discovery, or, in the UK, eDisclosure. Each of these terms can be interchanged while retaining the same meaning.
The large volume of electronic data generated by every private person and business entity has changed how attorneys process discovery. In fact, the Federal Rules of Civil Procedure have rules that must be followed to gather, store, sort, and review electronic evidence. These procedures have already been updated twice, with the latest updates occurring in 2015.
What Qualifies As Electronic or e-Discovery?
At first, eDiscovery included things like email records, stored computer files, and instant messaging data. Companies also started producing electronic discovery when they began converting over their files and interoffice memos to digital form. Now, this type of discovery includes, but is not limited to:
- Email content and logs
- Internet browser histories
- App usage information
- Business app information from app owners
- Smartphone records
- Instant messaging, chat boxes, and help bot records
- Metadata from websites
- Raw data from websites, apps, and smartphone records
- Search engine use and histories
- All business information stored on company servers
- All business information stored in the cloud
- Geo positioning data from apps, phone records, and computers
- Information from home appliances like virtual assistants or other smart home features
As electronic use and data continue to expand, so will the forms of data collected and used for discovery.
For some, the thought of having all of the discovery in electronic format may seem like a dream come true. No more stacks of banker’s boxes lined up against the wall and no more countless hours trying to bate stamp each document physically.
However, the truth is that electronic documents can often be a little more difficult to process unless you have the right litigation support in place. It is harder to sit and flip through page upon page on a computer screen without straining your eyes, and it is even harder to redact privileged information without the right software or systems in place.
Additionally, since metadata, raw data, and geo-positioning data are now incorporated into admissible discovery, you either need to have a computer degree along with your law degree or in-house and external expert support that can interpret what the code means.
Obtaining Valid Electronically Stored Information (ESI)
Every attorney understands that there are rules and procedures that must be followed when obtaining discovery. This also applies to electronic data that will be used as part of the case. At this time, the following procedures are used for obtaining digitally stored information.
- The data that has been selected by the attorneys as relevant for the case is identified.
- Upon identification, the information must be preserved as-is in a manner that will not allow data corruption. For many law firms, this data is stored in a separate server designated for this purpose. Some firms have litigation support that manages the storage and integrity of this information, while others work with an eDiscovery vendor.
- The attorney or law firm representing each party decides what information is relevant to the case and sets parameters for the discovery. This must be agreed upon by both sides. During this period, challenges for the use of information are common to go before the court.
- Parties can opt for a third-party auditor to go through the discovery to remove any information that is not relevant to the case. This can significantly reduce the amount of time and expense needed for discovery.
- Evidence is then extracted from the remaining digital files and used as part of the court case. Most evidence at this time is converted to PDF or TIFF files so that they can be printed if necessary. Some firms only print documents that need redactions.
- All other digital information extracted but is not part of the case is disposed of according to the law.
Many programs used for electronic files in discovery have a way to bate stamp these documents so that they are recordable for both parties.
Many Corporate Legal Departments Have Become Proactive In Digital Storage
Every year there is an increase in the digital footprint that is left by corporations and individuals alike. Since corporations are more often in a position to find themselves in litigation, many companies have become proactive in how and where they store their digital assets.
Many companies are designating digital information as relevant and irrelevant and storing them accordingly. In the eyes of the law, all information is relevant, but having this distinction in the corporate world can make litigation move much faster.
A law firm can request digital information from the relevant storage and begin the discovery process much easier than having to dig through shared lunch menus or memos that everyone can wear jeans on a Friday.
These corporations are also having standards set for the destruction of data and the chain of command that all data must follow, including that which is going to be destroyed. All of these digital footprints are helpful when it comes to the discovery process.
Digital information that is not stored by a corporation or individual, such as metadata and geo-positioning data, is collected from the appropriate parties and combined into the discovery.
Nine Steps For Collecting and Processing Electronic Data
All law firms have a basic set of rules that they must follow for collecting, storing, sorting, and using electronic data for discovery.
Attorneys use these rules to ensure that the data is always protected and has not been corrupted in any manner. As a basis, the following nine steps are generally taken for digital information.
- Identifying Data. The lawyers on both sides of the lawsuit will identify what digital data is relevant to their case to begin making formal requests for that information.
- Official Hold. Most firms will notify a corporation that there is a potential for litigation and that the digital information in question must be held apart and saved. This ensures that any relevant information is not accidentally destroyed as part of routine file cleaning in the corporation.
- Forensic Collection. The data must be collected from the source in a manner that will not corrupt, delete, change, or in any way, alter that information.
- Processing for Review. Once it has been confirmed that the data is sound, the data must be converted into a medium that can be used for the review. In most cases, this entails converting the data into files such as PDF that allow the attorneys to view the files and print if necessary.
- Review and Protect. Once the files have been converted, the attorney must review the information to build their case and redact any information that is considered privileged to protect the client.
- Analyze Information. All information must be analyzed for patterns and other useful information that can be used in the case. Recently AI-led eDiscovery is proving very effective in finding critical information faster and more affordably.
- Production. If the opposing counsel requests the data, the data must be made available electronically or in paper format.
- Use In Depositions and Trial. Information that has been obtained can then be legally used in deposition and other questioning formats as well as at trial as evidence.
- Storage of Information. Once the trial has ended, the information must be securely stored and destroyed in accordance with the law. An experienced e-Discovery vendor can assist with this.
Individual law firms may have additional steps that they take concerning digital formats. However, these nine steps are the ones most commonly followed by a majority of law firms today.
Important Definitions Concerning Electronic Discovery
When you are working with digital documents, you will frequently come across the following terms that are specific to this type of discovery.
- Custodian. The custodian is the individual or entity that originally created the electronic document or file. Custodian is also used in reference to the person or entity that had control of the file.
- Culling. Culling can help reduce the time it takes to process the digital data. Data can be sorted by custodian, date, time, subject, recipient, or privilege. This allows many documents to be overlooked that are not necessary for the case.
- Deduplication. Technology can be used to eliminate duplicate files in the collection. Most computers back up files and save the same document into two or more directories. When you deduplicate the files, you can reduce the data you have to review by 30 or more percent.
- Forensic Imaging. This is the term used when data is captured and stored without being corrupted in any manner, much like taking a photograph.
- Keyword Search. Using eDiscovery software, you can start a keyword search that will help you find documents in the data with a specific word or phrase in the document.
- Metadata. Metadata is the information about the information that you are reading. Metadata tells you when a file was created, by whom, and the recipient of that information. It will also tell you if the data has been modified and when that modification occurred.
- Native File. A native file is one that has not been altered in any way and has not been converted to an image or other type of files such as a PDF or TIFF.
- Optical Character Recognition. Optical Character Recognition (OCR) is a type of software that can scan image files for text or keywords.
The Future of eDiscovery
The digital footprints of individuals and corporations will continue to grow as technology progresses. Everyday new technology emerges that changes how we live and conduct business. As a result, the electronic discovery process will also continue to develop.
At the same time, legal technology and eDiscovery solutions will evolve to assist in the electronic discovery process, for example using machine learning and AI.
As electronic files become more relevant in legal cases, newer words and definitions will emerge to address these changes. It may eventually become necessary for law firms to have their own litigation support department to help interpret and decode digital information used for discovery or hire an external eDiscovery provider to assist on an ad hoc or ongoing basis.
The Federal Rules of Civil Procedure in the United States have already been updated twice to encompass the changes taking place in digital discovery. It can only be assumed that these changes will continue, and the Rules of Civil Procedure will be updated again to embrace these new forms of technology.
Conor Looney is also an advisor to the Electronic Discovery Reference Model’s (EDRM) Global Advisory Council.
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