What is eDiscovery? The Complete Electronic Discovery Guide
Gone are the days when eDiscovery was limited to outside litigators looking for smoking guns and redacting privileged information. Stricter regulatory oversight, cross border privacy regulations and increasingly larger and more complex data sets have expanded the scope and scale of eDiscovery technology.
SaaS and Artificial Intelligence have changed eDiscovery practices and transparent pricing and predictable budgeting have become the standard. Over the years, modern eDiscovery software has become a vital tool for the entire enterprise.
An introduction to eDiscovery
eDiscovery has a bad reputation. Litigators, general counsels, legal support staff, IT professionals, and information management specialists each approach eDiscovery from varying angles. Yet, they are united in a singular view, eDiscovery is a challenge.
It’s bad reputation is duly deserved. eDiscovery arrives with all the subtlety of a tornado, demanding immediate attention and sucking up time, money and labor in a deluge of dull, repetitive tasks and tedious processes.
As if that is not enough, eDiscovery can leave behind severe and crippling damages if it’s not completed absolutely thoroughly and accurately.
It’s obvious eDiscovery is definitely not a crowd-pleaser. So why should you care about eDiscovery?
What is eDiscovery?
Let’s keep this simple and just use the Wikipedia definition:
Electronic discovery (also e-discovery or ediscovery) refers to discovery in legal proceedings such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format (often referred to as electronically stored information or ESI). Electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.
What is eDiscovery used for?
eDiscovery is most often used in large investigations, involving multiple custodians, and large volumes of data. As data becomes increasingly more complex across the industry, eDiscovery is now also relevant for smaller organizations, as they are sifting through large data sets scattered across multiple channels.
eDiscovery tools help identify, preserve, collect, process, review, and analyze data as part of the discovery process within an investigation case.
Why is eDiscovery important?
In a world that is increasingly digital, all legal fact-finding will be done on electronic data sets pulled from email boxes, phones, tablets, hard disks, USB storage, cloud storage, enterprise collaboration platforms (i.e. Slack, Teams, etc.), social media, file shares, document management systems, Microsoft SharePoint and Office 365.
eDiscovery is the direct result of developing strategies to deal with these ever increasing amounts and types of electronically stored information (ESI) generated by businesses, people, and devices in our hyper-connected online world.
Because our world has become digital, all information requests from regulators, employees, customers and various other third parties will be about the content of these electronic data sets.
This means that today's legal professional must be able to deal with large electronic data sets. And that is only possible with modern (eDiscovery) technology. This is the only way to take decisions based on facts instead of based on guesses and assumptions. The only way to answer information requests timely, accurately and complete. And the only way to avoid high cost, reputation damage, regulatory measures, business disruption and stress.
Where does eDiscovery come from?
Originally, eDiscovery referred to discovery in legal proceedings where the information that was looked for, is in electronic format. This electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data is handed over to the requesting party.
In 2006, “eDiscovery” became a definable process under the U.S. Federal Rules of Civil Procedure (Amended in 2015.) The FRCP set forth guidelines for the discoverability of ESI and provided the rules of the game.
Various parties, like the Sedona Conference and EDRM since then have evolved the standards, guidelines and practical resources for managing the processes involved in eDiscovery.
|A CHANGING WORLD||WITH CONSEQUENCES FOR EDISCOVERY|
|More global||More languages and cross border regulations|
|More digital||Larger and more complex data sets, more sources of data (IoT)|
|More transparent||More information requests and faster reputation damage in case of errors|
|More regulations and regulatory oversight||Stronger disruptions and stronger after-effects in case of non-compliance.|
Nowadays, litigation is not the only reason for eDiscovery. As regulatory pressure continues to increase, eDiscovery related to answering regulatory requests is becoming the number one reason for eDiscovery. Competition, financial oversight, privacy, consumer protection, tax, fraud, bribery, health care, environmental, are just a few of the areas that are under increasing attention of the authorities.
Competition investigations are the most notorious ones involving huge electronic data sets and often resulting in what is called “serial litigation”, which leads to the need to keep data accessible for quite some time.
Privacy regulations like the GDPR and CCPA created a whole set of new obligations. Not only do data breaches have to be reported, but all subjects whose information has been breached must be informed. And more disruptive, citizen can issue “Right of Access” (GDPR) or “Right to Know” (CCPA) and “Right to be forgotten” (GDPR) and “Right to Delete” (CCPA) requests.
Causes for eDiscovery
- Criminal investigations
- Evidence confiscation
- Information request and dawn raids by regulatory agencies
- Competition and anti-trust
- Financial oversight
- Privacy and data protection
- Health care
- Social security
- Food and consumer goods
- Public records acts
- (Internal) investigations
- Audits and compliance checks
- Subject Access Requests & Right to be Forgotten
- Handling Data Breaches
Is eDiscovery the same as digital forensics?
When it comes to digital investigations, the terms eDiscovery and digital forensics are often used interchangeably. While they may seem similar at first glance, there are key differences between the two.
In simplest of terms, digital forensics is about finding the electronically stored information (ESI). eDiscovery on the other hand is about what's contained in the electronically stored information (ESI).
“eDiscovery has evolved into a $9 billion dollar industry that’s expected to double in size in the near future”
What are the eDiscovery use cases?
Essentially, there are five key use cases in which eDiscovery technology curbs the chaos and efficiently manages, analyzes, and validates massive data sets in law firms, government agencies, and businesses throughout Europe, the U.S., and other countries around the globe.
eDiscovery for criminal investigations
Traditionally, law enforcement agencies and legal teams rely on eDiscovery technology to process large volumes of digital evidence from a wide range of sources including body-worn video and security camera footage, PCs, laptops, smartphones, wearable devices, and online communications. European countries increasingly allow confiscation of digital evidence. Investigators are then permitted to search for keywords approved by a judge.
While eDiscovery tech benefits criminal investigations in a multitude of way, one of the most advantageous relates to locating evidence that is critical amid massive volumes of insignificant data.
Advanced search capabilities simplify the process for the user while greatly increasing the relevancy of results. Examples of such clients using eDiscovery in Europe are the UN war-crimes tribunals and the European Commission’s anti-fraud department OLAF.
eDiscovery for regulatory oversight and internal investigations
During their career, many criminal investigators make a switch to the private sector, in particular legal and internal security departments of enterprises. Therefore, it is no surprise that similar techniques as used in criminal investigations have made their ways into these organizations. Especially as it relates to the process to answer regulatory requests, but also for associated internal investigations and preventive audits to find out what really happened.
An eDiscovery platform expands your in-house capabilities to manage compliance functions and regulatory responses from start to finish. It also supports regular internal audits so you can proactively prepare to meet regulatory requirements and head off potential reputational damage, fines, and litigation.
- Consolidate siloed and dispersed data and automatically track the legal and privacy restrictions that apply as data is transported from one jurisdiction to another.
- Standardize and process disparate types of data while automating the time- and effort-consuming elements of reviewing and analyzing data.
- Isolate relevant facts and unearth the difficult-to-reach stories hiding in data. Visual data representations give at-a-glance understanding to reveal communication patterns and relationships in an instant that would have taken months to see with manual review.
- All processes are documented to ensure defensibility.
- Built-in workflow automations and customizable reporting save enormous efforts and ensure much greater accuracy by automating routine compliance and information disclosure processes.
eDiscovery for litigation and legal operations
eDiscovery technology is still ideal for efficiently handling mushrooming amounts of digital evidence exchanged by parties during civil litigation in Europe and the U.S.
Similarly, eDiscovery technology also delivers the accuracy, speed, and cost savings organizations need when engaging in commercial arbitration. Commercial arbitration organizations such as the International Chamber of Commerce (ICC) in Paris and the Netherlands Commercial Court (NCC) allow discovery to occur between parties in processes similar to those set forth in the U.S. Federal Rules of Civil Procedure. Commercial arbitration is a popular time- and cost-saving endeavor in Europe, especially when disputes involve contracts with parties outside of Europe such as Asia, Africa and Middle East where legal systems vary greatly.
Recent global statistics show consistent annual growth in international arbitration matters, including a continued uptick in energy/resources- and banking/finance-related claims. International arbitration is preferred over national courts because, among other reasons, it provides a neutral forum for international disputes and multiple options for enforcing and collecting on awards rendered in almost 160 countries.
eDiscovery for data privacy and security regulations
Over the years, uncontrolled technological progress and privacy violations have led to strict data protection and data security regulations.
Such privacy laws bring substantial compliance challenges for every organization that collects, processes, stores, and transfers personal data anywhere in the world. Whether data is held in data centers, in the cloud or with a third party, the entity responsible for the data (aka the “data controller”) must protect it at all times.
The GDPR added a whole new dimension to eDiscovery in Europe. The California Consumer Privacy Act now does the same in the U.S. The GDPR allows people to choose how their information is used through two main mechanisms: Data Subject Access Requests and the Right to be Forgotten Requests.
A range of data privacy and security laws may apply during the international exchange of data. Whether data travels across the street or across borders, it requires varying levels of protection depending on its sensitivity (personal, medical, financial, etc.). Strong encryption requirements may apply for data both in transport and at rest. Information security should meet all applicable standards including those set forth in ISO/IEC 27001 series.
If data security sounds expensive, the cost of ignoring it is much higher. Gartner predicts that by 2021, organizations that bypass privacy requirements and are caught lacking in privacy protection will pay 100% more in compliance cost than competitors that adhere to best practices.
An eDiscovery platform will meet required information security standards and notify you when privacy and security laws apply in cross-jurisdictional data exchanges. It can also automate the redaction of private information, making privacy compliance even easier than pressing a button.
By 2021, organizations that bypass privacy requirements and are caught lacking in privacy protection will pay 100% more in compliance cost than competitors that adhere to best practices.
More on Data Privacy and Data protection
eDiscovery for FOIA and public information requests
Citizens demand transparency into government and corporate activities in search of the real story.
Good examples of government agencies using eDiscovery technology for the handling or public records request are the City of Austin, City of Scottsdale, Kansas City’s Johnson County, and Pierce County (Tacoma) in the US but also European governments such as the city of The Hague and several departments of the Dutch national government.
More on Public Information Requests and FOIA.
“The Federal Rules of Civil Procedure govern civil proceedings in US district courts. Purpose of the rules is "to secure the just, speedy, and inexpensive determination of every action and proceeding.”
What are the basics of eDiscovery?
eDiscovery is the identification, collection, analyzing, review and production of ESI in response to a request for information in a law suit or investigation. eDiscovery starts the moment an information request is received or litigation is foreseeable. The process runs to the time the relevant data is presented in court.
The eDiscovery process: preservation
It all starts with the location of potential sources of ESI and determining the scope of the eDiscovery case. Potential litigants are obligated to preserve potentially relevant ESI and ensure that ESI is protected against inappropriate modifications or destruction.
Legal parties at both sides then determine the scope of eDiscovery. Search parameters can be negotiated with an opposing counsel or auditor to identify what is being searched and to ensure needed evidence is identified and non-evidence is screened out, thereby reducing the overall effort required to search, review, and produce it.
This process is called “Meet-and-Confer” and is obligated by the Federal Rules of Civil Procedure. Rule 26(f) of the FRCP requires that parties meet early in a litigation to negotiate an eDiscovery plan that will reduce costs and burdens for each side.
The eDiscovery process: collection
If the scope of the eDiscovery is determined, the relevant ESI is collected from the various sources for further use in the eDiscovery process.
Modern eDiscovery platforms like ZyLAB ONE, collect directly from the source using ZyLAB’s standard collectors for Microsoft Exchange, Microsoft SharePoint, Google Apps for Work and many more. In ZyLAB ONE you can, if needed, add your own collector option to collect directly from any other information source.
The eDiscovery process: processing and analysis
During processing all documents need to be analyzed for additional metadata, specific content, email threads, duplicates, privileged information and much more.
All of the ESI must be processed to reduce waste and duplication. This process allows for identification of the most important and relevant ESI. Processing is probably the most important component of eDiscovery: with the use advanced data analytics, legal teams can drastically eliminate the volume of non-relevant data before any processing for review takes place.
In ZyLAB ONE results are visualized in an analysis dashboard giving you direct insight in your data. This allows you to conduct a proper Early Case Assessment (ECA). Based on initial findings already processed data can be analyzed again using new analysis rules.
Accurate Early case assessment is important. This is the moment when you estimate the risk to prosecute or defend a legal case. Sometimes the findings are enough to negotiate a settlement with the opposing party. Over 90% of all cases in the US settle prior to trial.
The eDiscovery process: review
Review in legal proceedings, is the process whereby each party to a case sorts through and analyzes the documents and data they possess to determine which are sensitive or relevant to the case. Later in the proceeding, the same will be done for the documents and data supplied through discovery by the opponents.
During the review process, each document may be tagged according to certain categories, including whether it is relevant to an issue in the case, whether it is responsive to a discovery request (and therefore may need to be produced as part of the discovery process), whether it is confidential, or whether it is attorney client or otherwise privileged.
The eDiscovery process: production
In this stage, documents are prepared for use in court and exchanged between the appropriate counsels. Documents may require conversion to a static format (e.g. TIFF, PDF). To cull the number of documents to review, computer-assisted review is used. This process allows for prioritization of documents by the legal teams.
Technology Assisted Review
Technology Assisted Review (TAR) - also known as Computer Assisted Review (CAR) or Predictive Coding - uses a series of algorithms to search and sort documents relevant for data investigation or eDiscovery.
With machine learning, it is possible to teach the system to recognize specific document categories. This is done by providing the system with a number of positive and negative pre-labeled examples for each category.
ZyLAB ONE uses a variety of methods for automatic document classification to support technology assisted review (TAR). These patented methods vary from straightforward search-based, regular expressions, gazetteers (dictionaries) to advanced methods using natural language processing (NLP) and machine learning.
What are the costs of eDiscovery?
eDiscovery gets expensive fast, mostly because every step of the way has pitfalls and dark corners where mistakes can be made.
The overall cost of eDiscovery depends on many factors. First, there is the nature of the case and whether or not it goes to trial. There are the obvious costs (legal, process, technology, data, review and production costs) but there also costs that are never fully known on forehand.
During eDiscovery, the business takes a backseat as you spend valuable time preparing for cross-examination in court. You cannot put a figure on this kind of loss.
And what about your reputation? Your biggest asset is your good name, and eDiscovery that is negligent or imprecise can put your hard won reputation at risk. This can hit the business directly if you break the law and are barred from participating in public tenders.
There is other, subtler, reputational damage that can be just as corrosive If, because of poor eDiscovery, you are forced to settle for a sum far larger than the case seemed to warrant, you appear guilty, however innocent you may be (somewhere in those terabytes of data).
The only way to manage the costs of eDiscovery is to proactively retake control of the process. Being prepared for eDiscovery, understanding the known costs, and having some idea of the unknown costs is key to soften the effect of eDiscovery.
Taking control of eDiscovery
Performing eDiscovery tasks yourself sounds daunting, but the business case for it is compelling. By bringing advanced eDiscovery technologies in-house, you gain the ability to perform all eDiscovery processes internally and you create a safe harbor for your organization’s data that adapts to your challenges now and into the future.
eDiscovery technology is no longer expensive or hard to use. SaaS and Artificial Intelligence have changed eDiscovery practices and transparent pricing and predictable budgeting have become the standard. SaaS operations allow for processing to scale as needed almost infinitely and you only pay for what we use, not a dime more.
“Do It Yourself” (DIY) functionality allows you to upload data by just using a browser and start reviewing almost immediately, making it possible to run an eDiscovery project almost all by yourself.
Advances in Artificial Intelligence and powerful (legal) search have brought us even more: data collections are now processed fully automatically: data is unpacked, enriched, analyzed and organized automatically with unprecedented level of speed and accuracy. In just a fraction of the time, large amounts of information can be searched and relevant documents can be identified immediately using a wealth of search techniques.
Over the years, modern eDiscovery software has become a vital tool for the entire enterprise.
What is eDiscovery software?
eDiscovery software is a digital tool used to manage and analyze electronically stored information (ESI) during the discovery phase of a legal case.
The eDiscovery software helps legal professionals to search, filter, and categorize large volumes of data from various sources, including emails, social media posts, and text messages, to find relevant information that can be used as evidence in court.
More so it can also help legal teams and law firms to ensure compliance with data privacy and preservation regulations, and it can reduce the risk of spoliation and other legal errors that can negatively impact a case's outcome.
How does eDiscovery software work?
First, the eDiscovery software collects electronically stored information (ESI) from various sources, such as email archives, databases, and file shares. Once collected, the software indexes and organizes the data, making it easier for legal professionals to search and filter relevant information.
The software employs advanced search algorithms, including keyword and concept searching, to locate potentially relevant data, and uses machine learning and natural language processing to analyze the data and identify patterns and relationships that may be relevant to the case.
The software also includes tools for reviewing and coding the data, allowing legal professionals to tag and categorize information as relevant or irrelevant, privileged or non-privileged, and to apply redactions or other protective measures as necessary.
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