E-Discovery: What It Is & Why Your Growing Business Needs It
When it comes to the legal aspects of your business, e-Discovery is a vital process you can’t overlook. Here’s how to navigate these landmines of data and information for all your legal purposes.
What is E-Discovery?
Once exchanged in the form of physical documents, electronic discovery refers to the identifying, collecting, and processing of now electronically stored information (ESI). This information may include emails, documents, databases, presentations, audio and video files, social media, websites, and the like. These can be used as evidence in legal contract management and are collected as soon as litigation is foreseeable.
It’s important to retain the original versions of your ESI to avoid being accused of evidence tampering. These will be placed on legal hold while your attorneys and paralegals continue to search for relevant documents and information.
Some attorneys will use e-Discovery tools such as Computer Assisted Review (CAR) and Technology Assisted Review (TAR) to lower the costs of a regular review process. These types of software can automatically sift through documents that are relevant to your case. Once these documents are selected, they can be converted to any digital format.
What is the Impact of E-Discovery?
E-Discovery is becoming increasingly essential for all business attorneys and is now recognized by the Federal Rules of Civil Procedure (FRCP) as vital to civil lawsuits. The most common malpractice accusations are directed to poor recordkeeping, which can now be amended and automated with E-Discovery.
Attorneys and legal professionals now have to dedicate time to advance their technological skills in order to understand the scope and volume of ESI. Yet, these skills are rarely taught in law school curriculums, which means attorneys are now having to outsource programs in IT.
Nowadays, E-Discovery work is being performed in-house, which aims to save on costs post-recession. To avoid shelling out copious amounts of money, attorneys now need to familiarize themselves with ESI in order to succeed.
How to Use E-Discovery
For legal professionals learning ESI, they now have the Electronic Discovery Reference Model (EDRM) as a starting point. This is considered the definitive framework for E-Discovery and is divided into 9 iterative stages.
First, professionals must understand Information Governance (IG). This is the process of creating, collecting, and storing data to mitigate risk and expenses. IG is all about keeping this data secure, private, and compliant and includes the legal obligations tied to E-Discovery. Its model is known as the Information Governance Reference Model (IGRM). Here are the steps your attorney will need to follow.
- Identification: Legal teams will identify and decide which bits of ESI are relevant to a case.
- Preservation: The ESI cannot be destroyed or altered. This must be communicated by legal entities to custodians of said data.
- Collection: ESI is gathered for processing and review without any alterations.
- Processing: Specialized software is used to preparing the ESI and reducing volume for attorney analysis.
- Review: CAR and TAR software is used to sort the ESI according to relevance and privilege.
- Production: ESI is produced as evidence following court rules and procedures.
- Presentation: ESI is displayed as evidence at a trial, deposition, or hearing.
Though complex and arduous, E-Discovery is becoming an unavoidable aspect of your business’ legal process. Attorneys can now no longer able to lag behind, especially when it comes to claims of malpractice.