eDiscovery is the process of identifying, collecting and producing electronically stored information (ESI) for legal purposes – such as in investigations or as evidence in lawsuits. ESI can include emails, documents, social media posts and digital data.
Digital information has become an integral part of essentially every aspect of society – and that includes litigation and forensics. As digital communications continue to supplant more traditional analogue channels, and as electronic devices become ubiquitous across industries and lifestyles, the sheer amount of ESI is growing at a staggering rate. This provides clear opportunities for legal professionals and criminal investigators; evidence (in the form of digital information) provides insights into legal cases and those involved in them. Of course, with the volume of available ESI, traditional discovery methods are no longer sufficient.
To address this need, organisations and legal professionals are turning to eDiscovery.
A new discovery method for an increasingly digital world, eDiscovery is a comprehensive solution to the problem of managing digital evidence. Capable of identifying, collecting and producing ESI in response to authorised legal requests and internal investigations, eDiscovery encompasses the full range of digital data types. This includes:
- Emails
- Documents
- Presentations
- Databases
- Voicemail
- Audio and video files
- Social media
- Websites
Paper documents are not nearly as common as they once were. With the majority of business communications and records now stored electronically, a new digital approach is needed to fully account for paperless filing. eDiscovery allows organisations to efficiently locate and retrieve electronic evidence and other digital information – even when that evidence is spread across complex servers. This makes it indispensable for resolving legal disputes and investigations.
eDiscovery streamlines the discovery process. Unlike traditional paper-based methods, which can be time-consuming and resource-intensive, eDiscovery leverages technology to search, collect and organise ESI swiftly. This efficiency saves time and significantly reduces costs associated with extensive manual document review and retrieval.
At the end of the day, the importance of eDiscovery lies in its ability to save businesses both time and money. By enabling quick and precise access to digital evidence, organisations can navigate legal challenges more effectively, mitigate risks and allocate resources. As the volume of electronic data continues to grow, embracing eDiscovery has become essential for businesses aiming to stay competitive and compliant in the modern legal landscape.
For all the effort and time that eDiscovery can save for organisations, it is still a meticulous process that demands close adherence to a specific sequence of actions. While the specific procedures may vary among eDiscovery law firms, there are generally nine phases that help to streamline the collection, preservation and presentation of ESI. These stages collectively constitute the eDiscovery process, enabling organisations to efficiently manage and present electronically stored information, ensuring compliance with legal requirements and helping resolve disputes:
The eDiscovery process begins with information governance, which encompasses the establishment of procedures, controls and policies for data collection and preservation. The information governance reference model (IGRM) serves as a guiding framework, ensuring that eDiscovery agencies are consistently following established best practices.
In this stage, stakeholders work to identify what data must be preserved. This is achieved through interviews, an examination of case facts and an analysis of the digital environment. It is essential to determine which information is relevant to the ongoing litigation.
Once identified, data must be preserved, and data owners are formally instructed not to delete it. Preservation ensures that potentially crucial information remains available and unaltered.
Various technologies exist for collecting data, but the chosen methods must adhere to the defined legal process. The collecting team ensures that digital assets are collected without modifying critical metadata, such as file creation dates, sizes, and audit logs associated with each file.
Raw collected data is typically disorganised and unsuitable for legal presentation. The processing phase involves organising data and extracting pertinent information. Automation tools can help to extract relevant data from the chaff of irrelevant information.
Documentation and digital assets can be reviewed manually or with the assistance of artificial intelligence. During this stage, relevant information is separated from unnecessary data that is not pertinent to the ongoing litigation. This phase also identifies documents that are subject to legal advice privilege.
At this stage, digital assets become more organised for presentation. Reviewers identify patterns and key information critical for litigation and design a presentation layout for use during the trial or deposition.
To prepare for legal proceedings, digital assets must be transformed into physical documentation that can be presented in court. Lawyers select and prepare the key data for presentation.
Finally, the evidence in litigation must be presented to various parties, including lawyers, judges, juries, mediators and participants in legal proceedings. During this phase, the data is organised in a clear and comprehensible manner, making it easily understandable and navigable for the intended audience.
As mentioned above, eDiscovery has the potential to introduce certain challenges. Addressing these challenges effectively is crucial for any business that wishes to harness the benefits while also minimising risks and disruptions. Here are some of the key obstacles associated with eDiscovery, along with suggestions for mitigating them:
The sheer volume of electronically stored information (ESI) can make eDiscovery complex and overwhelming.
Solution: Employing advanced data analytics and machine learning tools makes it possible for organisations to quickly identify relevant data within large volumes. Implementing data reduction strategies, such as data deduplication and data culling, can also help with managing the volume effectively.
Although eDiscovery offers a faster and more streamlined approach when compared to traditional paper-based discovery methods, the eDiscovery process – with its multiple stages and extensive data review – can still be a time-intensive process, potentially causing delays in legal proceedings.
Solution: Businesses should invest in eDiscovery software and technologies that are highly rated for efficient data processing and review capabilities. Properly trained personnel can also help to expedite the process, as can developing clear eDiscovery protocols and workflows.
Effective eDiscovery necessitates collaboration between legal and IT teams, which often have different priorities and expertise.
Solution: Establish clear lines of communication and collaboration protocols between these teams. Create cross-functional eDiscovery teams with representatives from both legal and IT to ensure a unified approach. Training both teams on eDiscovery best practices can bridge the knowledge gap.
eDiscovery costs can escalate rapidly, particularly in complex cases with extensive data volumes.
Solution: Implement cost-control strategies by carefully managing data collection and processing. If needed, consider outsourcing specific eDiscovery tasks to third-party providers (if cost-effective providers are available). Evaluate pricing models of eDiscovery software and service providers to ensure they align with the organisation’s budget.
Handling sensitive data during eDiscovery requires extreme care to maintain data privacy and security.
Solution: Employ extensive data encryption and access controls to protect sensitive information throughout the eDiscovery process. Regularly audit and monitor data handling practices to ensure compliance with data protection regulations, such as the General Data Protection Regulation (GDPR) or Health Insurance Portability and Accountability (HIPAA).
eDiscovery should be a crucial concern for any organisations that are (or may become) involved in legal matters. Having a toolset capable of sifting through gigabytes of data provides a reliable safety net in the event that specific ESI needs to be located quickly. As such, eDiscovery’s potential extends beyond the legal sector, and the kinds of professionals who may benefit from it include:
Lawyers are the primary users of eDiscovery solutions, employing them to gather, review and present electronic evidence in legal proceedings. These tools assist legal professionals in efficiently identifying and organising pertinent electronic documents, emails and other digital information crucial to their cases. By streamlining the discovery process, eDiscovery saves time and reduces costs.
Much like individual legal professionals, law firms – especially those specialising in litigation – rely heavily on eDiscovery as a fundamental component of their legal practice. eDiscovery solutions enable these firms to provide comprehensive and efficient services to their clients, handling cases involving substantial volumes of electronic data more effectively.
In-house legal teams within corporations leverage eDiscovery to manage legal matters, regulatory compliance and internal investigations. eDiscovery tools aid corporate legal teams in identifying and preserving electronic evidence, ensuring they can respond promptly and effectively to legal challenges or regulatory enquiries.
Government agencies – including law enforcement, regulatory bodies and legal departments – employ eDiscovery to support their investigations and legal proceedings. Solutions that incorporate eDiscovery play pivotal roles in helping government agencies collect, review and organise electronic evidence for use in the prosecution of criminal cases and the enforcement of regulatory actions.
Compliance officers and auditors use eDiscovery to verify organisations’ adherence to legal and regulatory requirements. The correct approach to eDiscovery assists these professionals in identifying and addressing potential compliance violations by providing a closer look at the most relevant electronic records and communications. Likewise, eDiscovery aids in ensuring data integrity and proving compliance with industry regulations.
Records managers that oversee an organisation’s information governance policies may use eDiscovery to ensure proper data retention and disposal practices. eDiscovery helps records managers locate records relevant to legal issues while also assisting in managing data in compliance with retention policies. Ultimately, records managers that correctly employ eDiscovery solutions reduce the legal risks to their organisations.
With so much focus on eDiscovery’s usefulness in aiding criminal investigations, it is only natural that some professionals consider eDiscovery synonymous with digital forensics. That said, while both eDiscovery and digital forensics involve the examination of electronic data, they serve distinct purposes and are characterised by fundamental differences in their approach and objectives.
Digital forensics is primarily concerned with the preservation, extraction and analysis of electronic data for investigative or legal purposes. A forensics expert trained in computer science and cybersecurity takes the lead, with their primary responsibility being to safeguard the integrity of digital evidence and extract information stored within digital devices.
Digital forensics experts employ specialised techniques and tools to acquire data in a methodical and scientific way, ensuring that all original evidence remains unaltered. To do this, they delve deep into the digital realm, uncovering hidden data, deleted files and metadata. Digital forensics is commonly used in criminal investigations, cybersecurity incidents and cases where data integrity is paramount.
In contrast to digital forensics, eDiscovery is a process that focuses on the identification, collection and organisation of ESI for the purpose of legal review and production. Unlike digital forensics, eDiscovery is involved in the in-depth analysis of data by a forensics expert (though some eDiscovery tools do incorporate detailed data analysis). Instead, it is more geared towards gathering and organising information into a format that is easily comprehensible for legal professionals and other stakeholders. In other words, the goal of eDiscovery is to make ESI accessible to lawyers, legal support teams and other relevant parties during the legal discovery process.
e-Discovery serves as the cornerstone for efficiently managing electronically stored information in legal proceedings, facilitating the identification, collection and presentation of vital electronic evidence. However, the sheer volume and complexity of eDiscovery demands innovative solutions to help streamline its intricate processes. Legal Service Delivery from ServiceNow is a powerful legal software solution designed to support and modernise how legal departments approach eDiscovery and digital forensics. With ServiceNow, businesses can eliminate silos, reduce manual steps and boost efficiency, while also reducing risk. This transforms the legal journey from intake to insight, enhancing visibility and productivity across the board.
A standout feature within the Legal Service Delivery ecosystem is the Legal Digital Forensics App. This software provides a forensics foundation that enables streamlined processes for requesting, assigning and tracking eDiscovery-related queries across the enterprise. This simplifies the identification of both custodial and non-custodial data sources, and can be seamlessly integrated with third-party specialist eDiscovery tools to provide value-added services.
Learn more about ServiceNow for eDiscovery and digital forensics: Click here for a demo and see for yourself how ServiceNow can help your organisation to get more out of its ESI.