eDiscovery is a complex process. It requires specific expertise in the field of law and legal technology. It also requires an understanding of computer technology and data processing. That is why it’s important to implement eDiscovery best practices early on.
Our goal in this article is to go over some of the electronic discovery best practices that are widely used by companies around the world.
By the end, you will know the basics of how these practices work in the process of researching and finding important documents.
eDiscovery Best Practices
A number of best practices have been adopted to optimize the workflow of eDiscovery.
These practices offer a comprehensive roadmap into the eDiscovery process and are grouped as follows:
- Develop a comprehensive strategy
- Find and use the best tools
- Discover potential data sources
- Retain, preserve, and collect data
- Process and review the data
- Present the data
Each practice is a step in the eDiscovery workflow framework.
They illustrate the electronic discovery cycle and are widely adopted by the legal industry.
In the following sections, we will go through each step of the eDiscovery guide individually.
Developing a comprehensive strategy
Developing a comprehensive strategy is vital before eDiscovery can begin. Such a strategy streamlines the eDiscovery process and is crucial for efficiently managing electronic information in litigation.
Therefore, it is essential to begin eDiscovery as soon as litigation is anticipated. Doing so reduces the time and resources needed to identify, collect, and review relevant information. It minimizes unnecessary data collection and review and optimizes resource allocation.
A well-defined strategy ensures compliance with legal and regulatory requirements for preserving and producing ESI. It also helps mitigate the risk of data spoliation and helps maintain the integrity of the collected data.
Hence, a comprehensive strategy will make the process quicker, easier, and more efficient. It will also minimize the financial costs for both parties in the case.
Delegate the information governance
Information governance is the overall process of making information data available to the right people at the right time. Effective information governance helps organizations locate and produce relevant documents on time during legal proceedings.
Each person involved in the eDiscovery process must have a specific role and govern specific types of information. They have control over the information, which is granted by the organization implementing the eDiscovery.
This, however, doesn’t mean that each person has absolute control over the information. They are still supervised by the organization in terms of advice, storage, additional resources, etc.
There are xx general positions for each eDiscovery process. They can change depending on each case and the extent of the investigation.
The eDiscovery process begins when a requester initiates a request for electronic data or documents that are relevant to a specific legal matter. Depending on the case, the requestor can be an organization, a lawyer, or another authorized individual seeking to obtain relevant electronic data for investigation purposes.
The requestor specifies the type of information they need, and the respondent is obligated to provide them on time. Everything from the initial to the late stages of the investigation remains under the requestor’s authority.
The case manager
The case manager’s role is to receive the information from the requestor. Their responsibility is to oversee and coordinate various aspects of the eDiscovery process. The case manager researches and identifies documents and data relevant to the investigation.
They formulate a strategic plan for collecting and processing electronic data. In addition, they coordinate with legal teams and IT professionals and use eDiscovery software and tools to manage data efficiently.
The case manager also runs the investigation and tracks its progress from start to finish. They report frequently to the requestor and can ask for additional guidance and resources from them.
They ensure all activities adhere to legal requirements and assess potential risks associated with eDiscovery. The case manager can appoint a data officer if the case is too complex to investigate. The data officer then assigns tasks to the rest of the team and supervises them accordingly.
The ESI product owner/manager
ESI stands for Electronically Stored Information. This is where all the information needed for the investigation is stored. The ESI product owner/manager optimizes software and tools designed for managing data for legal purposes.
This professional is responsible for delivering that information per the request of the case manager. Ultimately, they are the ones that grant access to essential data files.
The person or organization that is subject to the investigation is called the custodian. This can be an individual or entity responsible for the custody and control of ESI. They must deliver additional information about the case to investigators. This information is often outside of the ESI system.
The person or organization who assesses and reviews the eDiscovery data is often called the reviewer.
The reviewer is often a legal expert and a certified eDiscovery specialist trained in the field of law. They have extensive knowledge and practical experience.
On top of that, they also have the technical knowledge and know how the eDiscovery process works and collects data.
Finding and using the right tools
Having the right tools before and during the eDiscovery process makes things much simpler and quicker.
For one, it is important to have the best storage tools.
Many companies and organizations choose to store all their data on private, in-house servers. This is because they may feel more secure knowing their data is physically stored. In-house servers give complete control over your servers and data.
Others prefer cloud-based storage due to its versatility and cost-effectiveness. Cloud storage reduces upfront costs and allows easy scalability. The data in cloud-based storage can be accessed from anywhere with an internet connection.
Shifting to cloud storage is, however, a challenge for eDiscovery and information governance because of its security and privacy issues.
Many companies also use a combination of these storage types. They keep vital information in in-house servers while the rest is sent to the cloud.
As far as data management tools are concerned, before and during the eDiscovery phase, the use of Office 365 has proven to be quite effective. It includes tools and features that can be powerful resources for organizations involved in legal activities.
It enables the use of advanced filters to improve search and includes features for case creation. Office 365 features enable legal teams to perform various tasks, including placing content on legal hold, exporting data in a review-friendly format, and establishing policies for automatic content retention or disposal, all in accordance with your organization’s specific requirements.
Discovering potential data sources
The process of eDiscovery begins with finding potential data sources. These sources will provide a wealth of information from which experts can extract vital case files. Potential data sources for eDiscovery can include:
- In-house servers (email, file, database, application servers)
- Cloud storage (platforms such as Google Drive can hold a lot of data)
- Computers (files, documents, images, search history, downloads folder)
- Mobile phones (SMS messages may contain relevant information)
- Databases (contain structured data and business-related information)
- Documents and files (word documents, PDFs, spreadsheets)
- Emails (often contain important information)
- Physical backups (CDs, DVDs, USB drives)
- Social media (public messages, post and comments can provide crucial data)
- Audio and video files (recordings, surveillance footage)
The case manager, in collaboration with the requestor, must filter and identify which one of these potential data sources is suitable for the investigation.
It is also important to question the custodian in the investigation. They will disclose additional information for the investigation. They can also point to new data sources where data is being kept.
Retaining, preserving, and collecting data
Companies and organizations operating under legal compliance must abide by a data retention and preservation policy. It is vital for them to have access to important information as they might be subject to litigation at any time in the future.
This is why a retention and preservation policy is a vital part of eDiscovery best practices. It allows for detailed records of data to be used in the future. Retention refers to storing data in a way to ensure accessibility.
This way, once a litigation of a company or organization starts, there will be no issues as to data availability. Prevention involves taking steps in order to prevent data alteration or deletion. With such a policy in place, data collection can be executed in a legal manner.
During the process of data collection, the case manager documents everything that’s being collected. They can even dismiss certain information from being collected and also request additional ones to be added to the process.
After the data is collected, its integrity is checked and verified by applying hashing to both the original and copied data information.
The data is now ready to be processed.
Processing and reviewing data
Data processing and data review are two separate stages of eDiscovery.
The processing of data precedes the review of data. This is where data is collected from different sources and actually analyzed and cut down to the most important parts. The goal is to reduce the amount of data that the experts have to review later.
The purpose of data processing is to clear off:
- duplicate documents
- irrelevant documents
- unnecessary search terms/keywords
Besides this, the processing phase also serves to extract relevant data from documents. This can mean recognizing and extracting multiple document files from a single compressed file (a ZIP document).
Once the data is processed, it can be reviewed in two ways:
- By human experts
- By dedicated eDiscovery services/software
The human approach is more difficult, as even experts become overwhelmed with a lot of information over time, which may further lead to more mistakes, but it is also more time-consuming.
On the other hand, a dedicated eDiscovery software utilizes something called predictive coding. It is a machine-learning approach that increases efficiency and reduces the time needed to review all the data.
During data reviewing, tools are used to prioritize documents based on their relevance. At this stage, attorneys and legal experts view documents to determine the evidence. Then, relevant documents are categorized for further analysis, and the sensitive data gets reduced.
The downside to this approach is that it needs “proper tuning” by human experts in order for it to operate optimally. This can result in increased implementation costs. The selected documents are then prepared for presentation in the court.
Presenting the data
The final stage of the eDiscovery process is the data presentation. The data is presented by the requestor with the aid of the case manager. When presenting, it is important to ensure the data is organized and documented correctly.
The presentation data often includes files and documents like:
- The list of gathered data and the formats used
- The log containing all the actions that were performed
- The log of data that couldn’t be recovered
- The log of search queries/keywords used in the eDiscovery software
- The hashes of produced data
Whether these documents are included in the presentation depends on the type of investigation.
Implementing these best practices in eDiscovery is key to avoiding serious consequences in court. Being prepared is always a smart thing; you can always be prepared for the unexpected. Thus, it is very important to document everything a company or organization does just to be on the safe side.
We hope that you now have an understanding of these effective eDiscovery strategies and that you will find a way to implement them in your company’s workflow.