When you meet new people, one of the first questions people ask is “What do you do?” A simple enough question, followed often with some basic, direct answers. However, for those of us who work in eDiscovery, the response to “I work in eDiscovery” is either:
- “Oh”, while quickly changing the subject, or
- “What does that entail?”
These responses come from both non-legal and legal professionals alike.
1. What is eDiscovery?
Over the years, I’ve distilled my response down to the following: Since almost everything is electronic now, particularly how we work and communicate, companies are hired to collect that electronic data. It can be it from computers, servers, cell phones, social media, etc., and experts upload it to electronic databases for attorneys to review and produce to opposing counsel. This is a rather simplified explanation of eDiscovery, but I’ve found it to be effective in removing the intimidation-factor.
In reality, yes, eDiscovery is much more complicated. There are many moving parts. There are numerous timelines to consider and plan for, including both the clients’ timelines, as well as internal timelines for all the machines and people to do what they need to do. There’s a whole new eDiscovery language to learn and/or teach, computers that can be trained to rank relevancy, and more tools, bells and whistles than most people have any idea what to do with. So, for someone who is having their first foray with eDiscovery, below is some basic foundational information, and questions to ask to get started.
2. When does the eDiscovery process start?
A top question that comes to mind is “When do I engage outside help?” In my opinion, the sooner, the better–and that’s not just the expert in me speaking. If you are unsure about any step of the process, ask someone that can provide you the answers.
For instance, opposing counsel propounds Requests for Production asking for various communications and documents. Common initial thoughts can include:
- Who do I need to collect data from? Individuals who have data that may be relevant to your litigation are called Custodians.
- What kind of data do I need to collect? Examples of digital data include email, computer images, targeted collections of computers and/or servers, cell phones, hard copy documents, etc.
- Where is the data located? Ask your Custodians where they may have any data relevant to the litigation stored. Possible locations to think about are work-issued computers and cell phones, company servers, external hard drives, archive storage, online storage options and the cloud, company chat programs, personal computers and cell phones, social media accounts, etc.
- How do I collect and/or preserve the data? There are many tools that can be used for instituting a legal hold on data. Ask your eDiscovery experts about the tools to determine which is right for you. When you’re ready to collect the data, it is ALWAYS recommended that you hire a forensics expert to collect your data for preservation. They have specialized tools to collect data that will maintain the integrity and defensibility of the data and the collection.
3. How does the eDiscovery process work?
There are plenty of forensics, collections and eDiscovery professionals and experts who can help you start to answer these questions and build the framework for your eDiscovery project. Use them. They will help clue you into places that data resides that you may not have thought of yourself. They will also help you collect your data in a forensically sound and defensible manner so opposing counsel cannot challenge what was done.
Perform Early Case Assessment
Your data has now been identified, preserved and/or collected. Next steps include early data analysis of what you have (review reporting for categories of user created data vs system data) and discussions of options to best cull your data.
This might include any of the following:
- File Extension filtering: selecting data to either include or exclude based on file types and/or file extensions. For example, if your lawsuit primarily centers around individual communications, you can filter out file types such as computer system and program files that are not going to be relevant to your litigation, ultimately reducing the amount of data to be reviewed, as well as overall costs.
- Date Filtering: limiting the date range on the data that is processed/reviewed. I would caution, however, that even if there is a stated date range in the complaint, you should always go a little broader with any date range performed prior to processing the data to ensure you do not need to dip back into the well.
- De-duplication (either within each custodian’s data, or globally across all custodians): Allows for removal of identical emails/files exchanged between custodians or within an individual’s dataset.
4. How does the data get processed for review?
Finally, the data needs to be processed. During the processing stage, attachments are separated from emails, and metadata is extracted from documents (all the bits and pieces of information in a document, such as the To/From/CC/BCC lines from an email header, along with the Email Sent Date, Email Sent Time, Email Received Date, Email Received Time) and entered into individual fields to all be loaded into a grid-like workspace for review. This allows for easier review, coding, quality control checks and production within the review platform.
These steps only scratch the surface of getting started with an eDiscovery project. The good news, though, is that there is a growing population of people with a wealth of knowledge available to answer any, and all, of your questions.
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