Back when I was practicing law, eDiscovery was new and it was a luxurious convenience if your clients happened to be tech savvy and your firm had invested in early eDiscovery tools. Today, however, the vast majority of business communication and data storage happens electronically.
This shift has undoubtedly revolutionized the legal field, particularly in litigation, where eDiscovery – the process of identifying, collecting, and producing electronically stored information (ESI) – has become the norm. Thus, for today’s legal professionals, understanding the basics of eDiscovery is not an option, but a mandate.
In this post, we’ll walk you through the fundamentals of eDiscovery, from understanding what it is and why it matters to some of the best practices for managing it.
Understanding eDiscovery
eDiscovery, short for electronic discovery, refers to the process of identifying, preserving, collecting, reviewing, and producing electronically stored information (ESI) during litigation. As businesses increasingly rely on digital communication and storage, eDiscovery has become a ubiquitous aspect of the legal process, particularly in civil litigation.
Definition and importance
At its core, eDiscovery is about managing the vast amounts of data that can be relevant in a legal case. This data might include emails, documents, databases, social media posts, and other digital files. In truth, the ability to efficiently and accurately handle ESI can make or break a case.
Types of electronically stored information (ESI)
ESI can take many forms, and understanding the different types is crucial for effective eDiscovery. Common forms of ESI include:
- Emails: Often the most significant source of evidence in eDiscovery, emails can reveal communications, agreements, and timelines critical to a case.
- Documents: Digital documents, such as contracts, letters, notes, reports, and spreadsheets, are frequently involved in eDiscovery. These can provide evidence of agreements, plans, and other important information.
- Social media posts: In our ultra-connected world, social media content, including posts, messages, and even comments, can be relevant, especially in cases involving personal disputes or public statements.
- Databases: Structured data stored in databases, such as customer information or transaction records, can be essential in cases involving large-scale data analysis.
- Metadata: Often overlooked in the past, metadata – information about other data, such as creation dates, file sizes, and modification history – can be crucial in verifying the authenticity and integrity of ESI.
Legal framework
The legal principles governing eDiscovery are essential to ensuring that the process is conducted fairly and in compliance with the law. In the United States, the Federal Rules of Civil Procedure (FRCP) provide the primary framework for eDiscovery. And although the states now have their own eDiscovery rules, the FRCP give us a general guide for understanding the obligations at issue.
Key rules
FRCP 26
This rule outlines the duty to disclose and the scope of discovery. It requires parties to disclose relevant information and permits the discovery of any non-privileged matter that is relevant to any party’s claim or defense.
FRCP 34
This rule governs the production of documents, electronically stored information, and tangible things. It allows parties to request the production of ESI in a specified format and requires that the responding party provide it as requested or state an objection.
Before you even begin to think about conducting discovery or eDiscovery, you have to understand these rules (or their state counterparts) so you can make sure the process is conducted properly and that all relevant information is considered in litigation. Failure to comply with eDiscovery obligations can result in sanctions, including fines, adverse inferences, or even case dismissal.
Key stages of the eDiscovery process
eDiscovery is not a single step but a process that involves several key stages. Understanding each stage and how to manage it effectively is essential for legal professionals handling ESI in litigation.
Identification
The first step in the eDiscovery process is identifying potentially relevant ESI. This involves determining where the relevant data is stored, who has access to it, and what types of data might be involved. Effective identification requires close collaboration between legal teams and IT professionals, as well as a thorough understanding of the client’s data environment.
Key considerations during identification include:
- Scope of discovery: FRCP 26 tells us that “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case…”. That’s a broad standard but you can start defining the scope by studying the particular claims and defenses at issue. This helps narrow down the types of data and sources that need to be considered.
- Data mapping: Work with IT to create a data map that outlines where relevant data is stored, including servers, cloud storage, mobile devices, and external drives.
- Key custodians: Identify the key individuals (i.e., custodians) who have access to or control over relevant ESI.
Preservation
Once relevant ESI has been identified, the next step is to ensure that it is preserved. FRCP 37(e) tells us that the legal duty to preserve ESI arises when litigation is reasonably anticipated. Preservation involves taking steps to prevent the alteration, deletion, or destruction of relevant data.
Key actions in the preservation stage include:
- Issuing legal holds: A legal hold is a notice sent to key employees, custodians, and IT personnel instructing them to preserve relevant data. The hold should be clear, specific, and regularly updated as the case evolves.
- Suspending data deletion policies: Work with IT to suspend any automatic deletion or data purging policies that might affect relevant ESI. This includes backup tape recycling and email deletion policies.
- Documenting preservation efforts: Keep detailed records of all preservation actions taken, including the issuance of legal holds, communications with custodians, and any changes to data retention policies.
Effective preservation is crucial to avoiding spoliation, which is the destruction or alteration of evidence. Spoliation can result in severe legal consequences, including sanctions or an adverse inference that the lost evidence was unfavorable to the responsible party.
Collection
The collection stage involves gathering the preserved ESI for further processing and review. The goal is to collect data in a manner that maintains its integrity and authenticity while ensuring that it is complete and accessible for review.
Best practices for collection include:
- Working with digital forensics experts: In complex cases or those involving large volumes of data, it may be necessary to involve digital forensics experts who specialize in collecting and preserving ESI. These experts can ensure that data is collected in a forensically sound manner.
- Maintaining a chain of custody: Document the chain of custody for all collected data, including who handled it, when, and where it was stored. This documentation is crucial for verifying the integrity of the data during litigation.
Best practices for conducting eDiscovery
Before diving into eDiscovery, it’s crucial to establish a clear plan that outlines the scope, timeline, and responsibilities for each stage of the process. This plan should be developed in consultation with key stakeholders, including legal teams, IT professionals, and clients.
Key components of an eDiscovery plan:
- Types of eDiscovery: Define what types of ESI will be collected and from which sources. This helps narrow the focus to relevant data and reduces unnecessary work.
- Timeline: Set realistic deadlines for each stage of the eDiscovery process, from identification to production. Ensure that all parties are aware of these deadlines and have the resources needed to meet them.
- Roles and responsibilities: Clearly assign roles and responsibilities to each team member, ensuring that everyone knows their tasks and how they contribute to the overall process.
A well-defined plan helps prevent delays, reduces the risk of errors, and ensures that the eDiscovery process stays on track.
Collaborating with IT and data management teams
Effective eDiscovery requires close collaboration between legal teams and IT professionals. IT teams play a critical role in identifying, preserving, and collecting ESI, and their expertise is essential for navigating the technical aspects of eDiscovery.
Best practices for collaboration:
- Regular communication: Establish regular communication channels between legal and IT teams to ensure that everyone is on the same page and that any issues are addressed promptly.
- Training and education: Provide ongoing training for both legal and IT teams on the latest eDiscovery tools and techniques, ensuring that everyone has the knowledge and skills needed to succeed.
By fostering a strong partnership between legal and IT teams, you can streamline the eDiscovery process and ensure that all relevant data is properly managed.
Maintaining data security
Data security is a top priority in eDiscovery, given the sensitive nature of the information involved. Ensuring that ESI is protected from unauthorized access, alteration, or loss is essential for maintaining client confidentiality and complying with legal and ethical obligations.
Key data security practices:
- Encryption: Use encryption to protect data both at rest and in transit, ensuring that only authorized users can review the information.
- Access controls: Implement strict access controls to limit who can view, edit, or delete ESI. This includes using role-based access permissions and regularly reviewing access logs.
- Data minimization: Collect only the data that is necessary for the case, and securely dispose of any irrelevant or duplicate information as soon as possible.
Protect privileged information
During the review process, it’s crucial to identify and protect privileged information, such as attorney-client communications or work product. Failure to do so can result in the inadvertent waiver of privilege, which can have serious legal consequences.
Best practices for protecting privileged information:
- Conduct privilege reviews: Implement a thorough privilege review process that includes both automated tools and manual checks to ensure that privileged documents are identified and withheld from production.
- Use privilege logs: Create detailed privilege logs that document the basis for withholding each privileged document. This helps justify the decision if challenged by the opposing party.
Conclusion
eDiscovery is an inescapably vital aspect of modern litigation. By understanding the key stages of eDiscovery, leveraging the right personnel and technology, and adhering to ethical standards, you can conduct eDiscovery effectively and efficiently (without facing those dreaded sanctions for non-compliance).
Remember, while eDiscovery can be daunting, mastering its fundamentals is no longer an option.
