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 analog 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, organizations 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 authorized 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
- Web sites
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 organizations 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 organize 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, organizations 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 eDiscovery can save organizations, 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 streamline the collection, preservation, and presentation of ESI. These stages collectively constitute the eDiscovery process, enabling organizations 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, size, and audit logs associated with each file.
Raw collected data is typically disorganized and unsuitable for legal presentation. The processing phase involves organizing data and extracting pertinent information. Automation tools can help extract relevant data from the chaff of irrelevant information.
Reviewing documentation and digital assets can be done 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 subject to client-attorney privilege.
At this stage, digital assets become more organized 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. Attorneys select and prepare the key data for presentation.
Finally, the evidence in litigation must be presented to various parties, including attorneys, judges, juries, mediators, and deposition participants. During this phase, the data is organized in a clear and comprehensible manner, making it easily understandable and navigable for the intended audience.
As was suggested above, eDiscovery has the potential to bring with it certain challenges. Addressing these challenges effectively is crucial for any businesses that wish to harness the benefits while also minimizing risks and disruptions. Here are some of the key obstacles associated with eDiscovery, along with suggestions for mitigating them:
Large data volume can mean increased complexity
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 organizations to quickly identify relevant data within large volumes. Implementing data reduction strategies, like data deduplication and data culling, can also help manage the volume effectively.
eDiscovery can be time-consuming
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 expedite the process, as can developing clear eDiscovery protocols and workflows.
eDiscovery demands close collaboration
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.
Costs can become prohibitive
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 organization's budget.
eDiscovery may deal with sensitive data
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 General Data Protection Regulation (GDPR) or Health Insurance Portability and Accountability (HIPAA).
eDiscovery should be a crucial concern for any organizations that are (or may become) involved in legal matters. Having a tool set 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; the kinds of professionals who may benefit from eDiscovery 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 organizing 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 specializing in litigation—heavily rely 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 inquiries.
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 organize electronic evidence for use in the prosecution of criminal cases and the enforcement of regulatory actions.
Compliance officers and auditors use eDiscovery to verify organizations' 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 organization'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 organizations.
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 characterized 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 to safeguard the integrity of digital evidence and extract information stored within digital devices.
Digital forensics experts employ specialized 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 organization 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 organizing 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 modernize 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 seamlessly integrates 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 organization get more out of its ESI.