An Introduction to Understanding the eDiscovery Process

Thanks to the latest technology, companies have the luxury of collecting massive amounts of customer data that they can use for their marketing efforts. Besides that, business processes and corporate communication also generate terabytes of sensitive data.

What’s equally important to mention is that all this data could be very relevant in case of legal disputes, investigations, audits, and lawsuits. That’s why it has to be properly stored, preserved, and indexed so that it can be made easily discoverable and handed over to the requesting party and officials. 

However, it’s easier said than done as we’re talking about huge volumes of data. 

Electronic discovery, or eDiscovery, is the process that can be of tremendous help when it comes to this, as it can facilitate and expedite identifying, collecting, and producing electronically stored data. 

Here’s what you should know about this concept. 

What Is eDiscovery? 

eDiscovery refers to the process of obtaining and exchanging relevant electronically stored information (ESI) that might potentially be considered as evidence in litigation. 

As the business landscape shifted almost exclusively to electronic communication, it was crucial to include emails, videos, images, audio files, voicemails, information from social media, databases, electronic documents, and other similar sources into the process of discovery. Hence, the prefix “e” is added to distinguish between electronic and physical records used in litigation, investigations, and other legal disputes and procedures.

What this means is that practically an email, Facebook post, or a tweet can be used as valid evidence in court. 

According to the Federal Rules of Civil Procedure, which came into effect in 2006, companies are required to keep and preserve their electronic documents, too, so that these can be used in the discovery stage of litigation, together with paper documentation. 

What Is an eDiscovery Request? 

Once a formal eDiscovery request has been issued, the parties involved in the litigation have to produce and disclose relevant information. 

There are various reasons for this, such as allegations of fraud, workplace disputes, mobbing, or all kinds of discrimination, to name just a few. Since, in all these cases, online correspondence and communication that contain evidence have to be presented, the litigants are asked to submit the requested documentation for review. 

There are two things to bear in mind when it comes to the discovery stage:

• Companies are usually given very short deadlines to complete an eDiscovery process 
• They have to cover all the expenses themselves 
• There are too many files and documents to retrieve and hand over.

In other words, this entire process is time and resource-intensive, not to mention that any delay in producing requested documentation results in hefty monetary penalties or even a prison sentence. 

That’s why many companies hire external expert teams to help them retrieve and process the requested data, which incurs very high costs. For example, a study has shown that the majority of Fortune 1000 companies spend somewhere between $5 and $10 million a year on eDiscovery. 

An email or ESI archiving solution can significantly reduce these costs and facilitate the entire data litigation process. 

There’s another important aspect that should be taken into consideration – email compliance. This concept has become increasingly important when data privacy protection regulations, such as GDPR or CAN-SPAM, were introduced. 

Since companies have to store and preserve all the sensitive data securely, email archiving 

Opting for an email archiving tool with eDiscovery features ensures regulatory compliance, streamlines the eDiscovery process and allows for improved data governance. 

How Does the eDiscovery Process Work? 

In order to discuss the eDiscovery process, it’s important to understand the Electronic Discovery Reference Model (EDRM.)

This model, created in 2005, consists of 9 stages, and though not every litigation process will follow all of them, it’s a useful guide to this subject matter as it describes eDiscovery activities that take place during an investigation. It’s worth mentioning that these stages do not necessarily have to be completed in this order. 

• Information governance. In order to be able to retrieve and process ESI, this information has to be captured, stored, and archived properly.
• Identification. Organizations are obligated to keep and preserve all the electronically stored information that might be relevant to potential legal disputes and matters. That’s why they need to distinguish and identify key pieces of ESI that might turn out to be important down the road. 
• Preservation. When the company identifies crucial pieces of electronic information, it has to preserve it as evidence. Placing this data on legal hold is one of the most common ways of preserving it, as it prevents relevant information from being deleted or tampered with. 
• Collection. After the information has been preserved and placed on legal hold, legal teams can collect and use it during the process of litigation. This way, it’s possible to ensure that the information is authentic. 
• Processing. After the evidence is collected, it has to be cleaned up before being reviewed by an attorney. 
• Review. At this stage, legal teams are reviewing the information and understand whether and how it relates to the lawsuit. 
•  Analysis. This refers to the process of evaluating the electronic information and establishing its context and significance with regard to the legal matter. 
• Production. After the ESI has been established as relevant for the lawsuit or investigation, legal teams have to find a way to use it properly. For example, if we’re talking about a social media post, it has to contain the metadata that will prove its authenticity. 
• Presentation. This refers to presenting the produced information during a trial or deposition. 

It’s clear that leveraging an archiving solution with features capable of capturing, collecting, and preserving emails or other electrically stored information can significantly facilitate and speed up t the eDiscovery process and reduce its costs. It’s essential to make sure that it enables compliance with regulations and preserving the information in its original form.