Understanding Ediscovery

What is ediscovery?

Ediscovery, also known as electronic discovery or e-discovery, refers to the relevant records and evidence in electronic format that lawyers on opposing sides of a court case provide each other. Electronic records can include emails, voicemail, texts, websites, social media, images, audio files and video files. It can also include raw data and metadata for review of hidden evidence. Ediscovery contains what is also known as electronically stored information (ESI).

History of ediscovery

References to electronic data surfaced in 1970, when an advisory committee for the Federal Rules of Civil Procedure noted in Rule 34 that the definition of “documents” should include electronic “data compilations.” At the time, this only covered large electronic databases. But the advent of email and the internet in the 1980s and 1990s was when e-discovery became more common.

The most prominent early ediscovery case was in 1989 when Oliver North was on trial for his role in the Iran-Contra scandal. Emails that North deleted from his computer were entered as evidence. The White House server kept an archive of sent and received emails, which included North’s deleted messages.

Ediscovery had another high profile case with the 1989 Microsoft monopoly trial. Emails written by Bill Gates were recovered from Microsoft’s servers and used as evidence.

After the collapse of the Enron Corporation in 2001, ediscovery in the resulting investigation and litigation collected more than 600,000 emails generated by Enron employees. All of Enron’s database systems were also captured and preserved. Later the email archive was made public and searchable as the Enron corpus. It has become one of standard research tools used for ediscovery training and testing.

More recently, ediscovery has made a popular culture impact in cases involving New England Patriot quarterback Tom Brady and former secretary of state and presidential candidate Hillary Clinton. In Brady’s case, a destroyed cell phone in 2015 led to an obstruction of justice charge because it kept investigators from the information they needed. In Clinton’s case, Congressional investigators and the FBI recovered and reviewed emails that were deleted from her personal server. These emails played a role in the 2016 presidential election.

Today, there is an ediscovery industry that promotes the practice and advances new technologies for lawyers and law firms.

How can ediscovery help litigation?

Large volumes of documents have always been a part of legal discovery. But the massive amount of data in the digital era makes ediscovery solutions necessary. Today’s exponential increase in data also increases the risk that key evidence will be overlooked in the legal process. The cost to analyze more and more data grows, too. Ediscovery software lets lawyers gather all the electronic information relevant to a case and has become essential a complete discovery process.

A new and growing trend in ediscovery is the use of machine learning and artificial intelligence, which frees lawyers from having to look at every document. Analytic software such as predictive coding, computer assisted review (CAR) and technology assisted review (TAR) flags key documents. This reduces the number of documents for human review, which allows lawyers to prioritize the documents that require more attention. The result is a cost-savings by reducing the number of billable hours. At the same time, ediscovery services give legal teams the confidence they have assembled the core volume of evidence needed for litigation.

Ediscovery software helps lawyers identify and mitigate risks by simultaneously serving as a records and information management technology.

The metadata found in electronic information and not paper documents allows for more vital evidence in cases. For example, the electronic time stamp when a document was written for a time-sensitive copyright case.

What is ediscovery for document review?

Ediscovery for document review is the process of collecting and analyzing documents for relevancy to a case. It also determines if the documents contain privileged information. The review helps a legal team better understand the case, establish litigation strategy and tell the “story” of the case.

Document review can be time consuming and resource intensive, especially when there is too much electronically stored information to review. Advancements in ediscovery services can help a legal team focus only on the ESI that is relevant to a case.

What laws govern ediscovery?

The Federal Rules of Civil Procedure (FRCP) govern ediscovery laws, rules and standards in the United States. Ediscovery requirements were added to the FRCP in 2005 and amended in 2015 to address some shortfalls. Prior to 2005, the FRCP had no rules specific for ediscovery resources, which created a “wild west” atmosphere for cases that involved electronic information. While most states follow FRCP rules, some states have a few differences. See breakdown of state laws here.

Today, lawyers are expected to understand ediscovery and technology as a matter of ethical practice. The American Bar Association updated its Model Rules of Professional Conduct in 2012 to include a provision that lawyers must “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Some states now require lawyers to take continuing legal education (CLE) courses in tech.

How does ediscovery fit within the larger “legal” universe?

As electronic data increasingly becomes vital for evidence in civil and criminal legal cases, ediscovery is the process that allows electronically stored information to be collected, searched and analyzed.

Unlike physical documents, electronic format documents can contain metadata such as time-date stamps and author and recipient information that can make evidence more impactful. However, ediscovery services must preserve the original version of electronically stored information and analyze copies to avoid claims of alterations and spoliation during litigation.

The following developments prove that ediscovery solutions have become an essential part the legal universe:

  • Federal Rules of Civil Procedure acknowledge the importance of ediscovery
  • Clients frequently seek new counsel if they consider the counsel’s ediscovery skills as insufficient
  • Opposing parties frequently challenge ediscovery protocols as part of their strategy
  • An improper ediscovery process can result in data spoliation and possible sanctions

What are the legal implications of ediscovery?

With ediscovery, any type of electronic data can serve as evidence in a civil or criminal legal case. This includes email, computer programs, calendar files, spreadsheets, audio files, images and animation. Malware like viruses and spyware can also be investigated. Ediscovery also includes cyberforensics, or computer forensics, which investigates the contents of a hard drive. A digital copy of the drive is made for analysis and the original is stored for safekeeping.

Ediscovery software has changed the nature of legal cases because digital data can be easily searched electronically versus manual handling of paper documents. Ediscovery solutions are essential in an age when digital data is impossible to completely destroy, especially when it is stored on a network versus an individual hard drive.

What is the ediscovery process?

The massive amount of electronic data produced and stored today requires a complex ediscovery process to determine relevant information.

A successful ediscovery platform combines both legal and technical skill. Legal teams and the IT, or litigation support, teams of law firms must work together closely. This can result in “lost in translation” moments but it is vital the legal and technical minds to communicate effectively and be on the same page.

The ediscovery process encompasses the time between a lawsuit seems possible to when the digital evidence is presented in court. The process includes the following steps:

  1. Data is identified by attorneys on both sides of a case.
  2. Data is placed under a legal hold, which means it can’t be modified or deleted.
  3. Data is collected, indexed and put into a database.
  4. Attorneys make e-discovery requests and challenges.
  5. Potentially relevant data is analyzed to determine what is relevant. Non-relevant documents are culled.
  6. Relevant ESI evidence is extracted and converted into PDF or TIFF form for use in court.

What is EDRM?

EDRM stands for the Electronic Discovery Reference Model. It was created by George Socha and Tom Gelbmann in 2005 to create a framework of standards in the ediscovery market. The EDRM visually outlines nine ediscovery stages by using arrows to illustrate the iterative sequence.

The EDRM has two sides. The left side includes the process-centric stages (information governance, identification, preservation and collection). The right side includes the data-centric stages (processing, review, analysis, production and presentation).

Electronic Discovery Reference Model

EDRM at Duke Law describes each stage:

  • Information Governance – Mitigate risks with proper ediscovery protocol from from initial creation of electronically stored information (ESI) through its final presentation in court.
  • Identification – Locating potential sources of ESI and determining its scope.
  • Preservation – Ensuring that ESI is protected against alteration or destruction.
  • Collection – Gathering ESI for further use in the ediscovery process (processing, review, etc.).
  • Processing – Reducing the volume of ESI and converting it to forms more suitable for review and analysis.
  • Review – Evaluating ESI for relevance and privilege.
  • Analysis – Evaluating ESI for content and context, including key patterns, topics, people and discussion.
  • Production – Delivering ESI to others in appropriate forms and using appropriate delivery mechanisms.
  • Presentation – Displaying ESI at depositions, hearings and trials to validate existing facts or persuade an audience.

What are some ediscovery tools?

Categories of ediscovery tools include:

  • Point tool — Single application that extracts data from a specific system.
  • Platform — Organically designed system that can collect information from any source.

Platforms are costlier and more complex than point tools, but ediscovery platforms are more flexible. They integrate with many different systems and can fit any IT environment. Platforms also allow for easier flow of data between each step of the ediscovery process.

Everlaw offers an ediscovery platform for document analysis that offers blink-speed search, an intuitive user interface, real-time collaboration, accessible predictive coding and robust case-building tools. Everlaw’s engineers use cutting edge technology to replace antiquated, on-premises software with an integrated platform for litigating a case from discovery to the courtroom.