The latest eDiscovery hot topic revolves around a Federal Judge Survey that highlights a key point, in which we at D4 are not surprised by: after all these years of talking about eDiscovery, many practitioners, and the legal industry overall, still do not understand the eDiscovery process and how to properly handle Electronically Stored Information (ESI).
So what exactly is eDiscovery? Let’s take a look at a high-level definition as defined by D4:
eDiscovery is a defensible, multi-step process in which electronic data is sought, located, secured, and/or searched with the intent of using it as evidence in a civil or criminal legal case.
The key point to remember is that eDiscovery is a multi-step process. It is not a single task, or a single step, and each part of the process takes time.
If everyone understands the process, and the steps that ESI should go through, then it is up to the legal team to decide whether they want to follow the process. If they choose not to follow the process, then they do so at their own risk.
Here are five very good reasons why you should care about eDiscovery:
- FRCP and state court rules require legal counsel to pay attention
- Savvy opposing parties are challenging eDiscovery protocols
- Savvy clients are evaluating their outside counsel’s eDiscovery skillsets and technology workflows and if deemed insufficient, are actively seeking out new counsel
- Excessive, and sometimes unnecessary, eDiscovery costs
- Risk of data spoliation and possible sanctions
3 Key Phases of the eDiscovery Process
Here is a simple breakdown of the eDiscovery process into three key phases explaining what every legal team should know:
Phase 1: Identification, Preservation, Collection
- Relevant data must be identified, preserved and/or collected when litigation is anticipated, or when a complaint is filed and a litigation hold is put into place.
- The Federal Rules of Civil Procedure (FRCP) must be adhered to on federal matters. Most state courts are adopting similar rules that legal counsel must follow. To ignore these rules would be doing so at your own risk.
- Phase 1 is where D4 sees most eDiscovery protocol challenges occur. If data is not preserved and/or collected properly, metadata and files will most likely become corrupted. Many times, we see metadata altered to reflect legal counsel’s information because original, client-source ESI was “reviewed” within their own law firm applications, or within their own Microsoft Outlook email accounts.
- It doesn’t matter if legal teams have 10 MBs or 10 TBs of ESI; when handling ESI, you must adhere to certain preservation and collection protocols in order to prevent data spoliation.
Phase 2: Data Analysis, Reduction, Analytics
- Phase 2 has the potential to be the most important component of eDiscovery, especially as the volume of data continues to increase. Oftentimes, however, this is the most overlooked part of the process.
- With the use of data analysis and advanced analytics technologies, legal teams have the potential to eliminate up to 50% or more of non-relevant data before any processing for review takes place.
- By ignoring Phase 2, legal teams could potentially miss out on quickly identifying case strategy and realizing significant eDiscovery cost savings, especially on large cases.
Phase 3: Processing, Review, Production
- Based on my experience at D4, it seems that Phase 3 is when most legal teams start the eDiscovery process. With discovery deadlines looming on the horizon, it is typically too late in the process to strategically work with ESI prior to review.
- Instead of smaller, relevant subsets of data, legal teams send everything for processing and review, causing eDiscovery costs to increase significantly. It is for this reason that review becomes the most expensive part of the eDiscovery process.
Courts are starting to pay considerably more attention to how eDiscovery is handled by attorneys and their clients. Legal teams can choose to turn a blind eye to educating themselves on the eDiscovery process and handling ESI properly, however, ignoring the process could eventually catch up to them, and with serious repercussions.
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