E-Discovery

E-discovery, a compound version of “electronic discovery,” is the legal process that parties use to gather and review electronic information. The purpose of e-discovery is to preserve electronic documents to be used as evidence in a legal case. If pieces of evidence are deemed critical to a case, e-discovery can also involve court-ordered or government-sanctioned hacking.

The e-discovery process is complex and multi-layered. It is more than one single task. Rather, it is a series of diligent steps and actions that together help build solid evidence for a legal case. The types of electronically stored information (ESI) that can be gathered are vast and can include notes, documents, emails, voicemails, audio, video, database files and more.

• E-discovery, a compound version of “electronic discovery,” is the legal process that parties use to gather and review electronic information.
• Several landmark cases in the U.S. set a precedent for what constitutes e-discovery, prompting the creation of the Electronic Discovery Reference Model (EDRM), which standardizes the framework for e-discovery.
• Proper e-discovery can provide many benefits, such as making legal processes more efficient, reducing litigation costs and bolstering compliance efforts.

The e-discovery process usually begins when litigation seems reasonably likely. Both parties in a legal case have the right to examine any ESI they consider appropriate. This process is relatively new, starting during the age of digital information. Prior to e-discovery, attorneys relied solely on the discovery they could perform with physical documents and media.

Each country’s legal system has its own set of rules surrounding e-discovery. In the U.S., several high-profile cases have shaped e-discovery procedures:

• Zubulake v. UBS Warburg: In 2002, Laura Zubulake, an employee of investment bank UBS, sued the company for gender discrimination. The case, which played out between 2003 and 2005, yielded a series of groundbreaking rulings addressing the production and preservation of electronic documents during discovery. These decisions established guidelines regarding data retention policies and the management of electronic information for potential legal proceedings.
• Victor Stanley, Inc. v. Creative Pipe, Inc.: This landmark case, which involved copyright infringement and unfair competition claims, emphasized the importance of diligence in the e-discovery process. It highlighted how crucial it is for companies to conduct thorough and careful searches for documents, particularly in terms of protecting sensitive or confidential information.
• Qualcomm v. Broadcom: This case, which centered on patent infringement claims brought by Qualcomm against Broadcom, underscored the need for e-discovery transparency. Qualcomm failed to produce pivotal emails during litigation, prompting the courts to consider the importance of complete, thorough digital searches and what it means for companies when they don’t comply. The court found this failure to be intentional and imposed severe sanctions on Qualcomm and its legal team.

The Electronic Discovery Reference Model (EDRM) is a diagram that lays out the framework for e-discovery. The EDRM ensures the transparency and depth of data management necessary for our legal system. In general, it covers:

• Information governance (IG): This umbrella term covers the procedures and policies surrounding data management — more specifically, its preservation and collection. The Information Governance Reference Model (IGRM) is a set of best practices established to set industry standards for proper IG and its steps. 
• Identification: Understanding the scope and potential location of ESI that might be relevant to the case involves not only pinpointing where data is stored but also assessing its potential relevance to the legal issues at hand. This may include identifying various data types, such as emails, documents, social media content and databases, or determining the custodians who hold this information.
• Preservation: Protecting any of that information from being immediately destroyed or tampered with is critical to maintaining the integrity of the evidence. This process often includes issuing legal hold notices to ensure that custodians are aware of their obligation to preserve relevant data and may also involve implementing technical measures to prevent accidental deletion.
• Collection: The process of gathering all this information must be conducted in a manner that preserves the integrity and authenticity of the data. Forensic collection techniques are often employed to ensure the data is captured without alteration, and documentation of the collection process is essential for maintaining a clear chain of custody. 
• Processing: Converting ESI to an easily browsable format and culling repetitive or redundant information is essential for efficient review. This step not only involves de-duplicating files but also applying filters to exclude irrelevant data, thereby streamlining the review process and reducing the volume of information that needs to be analyzed.
• Review: Reviewing electronic documents in detail regarding discovery requests and responsiveness requires a systematic approach to categorize documents based on their relevance to the case. Review teams often use advanced technologies, such as predictive coding or machine learning, to enhance efficiency and accuracy in identifying pertinent information.
• Analysis: This involves e-discovery professionals examining each document individually to ensure only information necessary to the case is presented. This might require a deeper contextual analysis of the content. This can also include assessing the potential impact of the documents on the case strategy and identifying gaps in the evidence.
• Production: Delivering the ESI to the necessary recipients and in easily readable forms requires careful attention to detail to ensure compliance with legal standards and agreements. This may involve producing documents in various formats and accompanying metadata while properly redacting privileged information.
• Presentation: Displaying ESI to others during various parts of the legal case involves preparing materials that clearly convey the relevance and importance of the evidence. Effective presentation techniques, including the use of visual aids and technology, helps judges, juries and other case stakeholders better comprehend the evidence.

Companies and e-discovery professionals must be mindful of the challenges they face. While e-discovery is essential to litigation and regulatory matters of all types, it’s nowhere near a perfect process. Here are three of the most significant challenges.

Lack of preparation for an e-discovery

Lack of preparation is a significant challenge in e-discovery. Many companies underestimate the complexity and volume of electronic data involved in modern corporate cases.

This oversight can lead to inadequate data collection, processing and review planning. Insufficient preparation may result in missed deadlines, overlooked relevant information or the inadvertent disclosure of privileged documents.

Additionally, unprepared teams may struggle with choosing appropriate e-discovery tools (virus scanning, file indexing or document digitizing software) or fail to establish clear protocols for data handling. This lack of readiness can increase costs, delay proceedings and potentially harm the case outcome. Proper preparation is crucial for navigating the complexities of e-discovery efficiently and effectively.

Large amounts of data

The sheer volume of electronically stored information (64 zettabytes globally, or the equivalent of roughly 64 trillion gigabytes) presents a significant challenge in e-discovery. The exponential growth of digital data complicates the process of identifying, collecting and analyzing relevant information.

Vast amounts of data can overwhelm teams, making it difficult to review and extract pertinent evidence efficiently without the help of e-discovery IT professionals. The complexity of data formats and sources, including emails, social media and chat applications, further exacerbates the challenge.

Managing and processing these large data volumes requires advanced technologies and specialized expertise, often leading to increased costs and time constraints in the e-discovery process.

Evolving data privacy laws

Evolving data privacy laws pose a significant challenge to e-discovery. The rapidly changing regulatory landscape, including laws like the General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA), makes managing and accessing data across jurisdictions complex. Legal teams must navigate a patchwork of regulations, ensuring compliance while conducting thorough e-discovery.

These laws often grant individuals greater control over their personal data, potentially limiting access to relevant information. Additionally, cross-border data transfers and varying retention requirements further complicate the process. Organizations must continually adapt their e-discovery practices to align with emerging privacy standards, balancing legal obligations with data protection mandates.

E-discovery software platforms can effectively address the above challenges. Lawyers and their IT support teams can mitigate lack of preparation through workflow automation and project management tools that systematically guide legal teams during the e-discovery process. Further, they can manage large data volumes using advanced search capabilities, data culling and AI-powered analytics to identify relevant information quickly.

These platforms often include built-in compliance features, data retention policies and access controls to address evolving privacy laws. They can also help organizations implement consistent protocols across jurisdictions. Additionally, cloud-based solutions allow for easy updates to keep pace with changing regulations.

Here are the other significant benefits an e-discovery platform can provide:

• Improved efficiency: E-discovery software automates many time-consuming manual tasks, significantly reducing the time required to identify, collect and review ESI. Advanced search capabilities and AI-powered analytics enable legal teams to find relevant documents quickly.
• Cost reduction: These platforms can substantially lower costs associated with document review and third-party services by streamlining the e-discovery process.
• Enhanced accuracy: Automated tools and AI algorithms improve the accuracy of document review and reduce human error. This leads to more thorough and reliable results compared to manual processes.
• Centralized data management: E-discovery platforms provide a single repository for all case-related ESI, including emails, files and chat messages. This centralization simplifies data management and ensures consistency across the e-discovery process.
• Improved compliance: Built-in features help organizations adhere to evolving data privacy laws and regulatory requirements. Automated retention policies and access controls assist in maintaining compliance across different jurisdictions.
• Early case assessment: E-discovery software often includes tools for early case assessment, helping legal teams quickly evaluate a case's strength and develop appropriate strategies early in the litigation process.
• Better collaboration: Cloud-based e-discovery platforms enable seamless collaboration among legal team members, regardless of location. This facilitates more efficient workflows and decision-making throughout the e-discovery process.
• Scalability: Cloud-based e-discovery solutions can quickly scale to accommodate growing data volumes and changing organizational needs, ensuring that the platform remains effective as data requirements evolve.

Barracuda Message Archiver is a cloud-integrated message archiving solution designed with e-discovery in mind. Indexed archives provide iterative, multi-level searching and tagging capabilities to support complex audit and discovery exercises, drastically cutting the time and effort required to respond to discovery requests.

Do you have more questions about e-discovery? Contact us now.