From Preservation to Production: The eDiscovery Process Explained

The electronic discovery process (eDiscovery) covers every aspect of handling electronically stored information that is relevant to legal proceedings. The stages of the eDiscovery process establish best practices for reviewing Electronically Stored Information (ESI) that are useful to all parties, from document review attorneys, in-house teams and opposing counsel. An explanation of the major stages of eDiscovery can provide a clearer understanding of this process along with important considerations for preserving, processing and producing responsive data.

Table Of Contents:

• What Is the eDiscovery Process?
• 7 Major eDiscovery Process Steps
• Legal Obligations and Ethical Considerations
• Determining the Scope of eDiscovery
• Tips for Planning the eDiscovery Process
• Data Management Strategies for eDiscovery
• Advanced eDiscovery Techniques and Technologies
• The Future of the eDiscovery Process

What Is the eDiscovery Process?

eDiscovery updates the conventions of legal discovery to meet the unique demands of ESI. The steps of eDiscovery correspond to traditional discovery, starting with identifying relevant documents or other types of files.

Preservation and collection are subsequent stages of eDiscovery. Obtaining stable copies of documents or other types of data is critical for analyzing ESI. Collection involves organizing information for further processing or transfer to legal counsel.

ESI introduces new factors to the discovery process, such as the risk of deletion or spoliation of relevant files. eDiscovery software enables reviewers to place legal holds and preserve documents in stable formats. After review and analysis, responsive data is ready to produce to opposing counsel or present in court.

7 Major eDiscovery Process Steps

There are seven major steps in the process of eDiscovery. These steps are preceded by a general focus on information governance and followed by a presentation of evidence in leading models, but these steps encompass the core eDiscovery process.

1. Identification

The significant part of the eDiscovery process starts with searching data repositories for relevant information and estimating the volume of potentially responsive data. It may also be necessary to identify and interview custodians or review passively gathered data at this stage.

2. Preservation

The second step of eDiscovery involves placing legal holds to prevent deletion of responsive data. When placing holds, reviewers are required to notify custodians about the need to preserve information that could be relevant to a case.

3. Collection

Data that has been preserved is ready for preliminary organization for use in subsequent stages of eDiscovery. The collection stage may involve digital forensics. Any techniques deployed at this stage should be defensible against challenges by opposing counsel.

4. Processing

The processing step of eDiscovery reduces the volume of ESI in preparation for review and analysis. Data culling measures, such as deduplication and deNISTing, are processing methods. Reviewers refine general classifications through concept clustering and other organizational frameworks during collection.

5. Review

Data review during eDiscovery involves determining which ESI responds to discovery requests and assessing responsive information in light of considerations such as attorney-client or work product privilege. Documents can be redacted during review to limit exposure of sensitive information. eDiscovery software with technology-assisted review features expedites this stage of the eDiscovery process.

6. Analysis

While analysis is essential throughout the process of eDiscovery, teams work with the most relevant evidence during this stage. By reviewing content and context, document review attorneys can identify patterns and pertinent topics, advance theories and develop strategies.

7. Production

The last major stage of eDiscovery involves preparing data for presentation. Case materials are readied for depositions, hearings or trials and may be turned over to opposing counsel. Review teams often focus on demonstrating the relevance of evidence to juries or other non-professional audiences.

In some organizations this process is long and complication. Take a fresh look at this process with right-sized eDiscovery from Cloudficient.

Legal Obligations and Ethical Considerations

The process of eDiscovery involves a wide range of legal obligations. Attorney-client privilege, work product privilege and the confidentiality of sensitive information should be observed according to recognized standards such as the Federal Rules of Civil Procedure and Model Rules of Professional Conduct published by the American Bar Association.

Obligations for sound legal practice apply throughout the eDiscovery process. In some cases, the stages of this process are divided between in-house review teams and external counsel, which distributes the burden to observe best practices across multiple parties.

According to the ABA, attorneys have an ethical duty to keep up with technological advancements in the legal field. Ethics considerations associated with eDiscovery can range from observing defensible standards for selecting and preserving relevant documents to setting appropriate boundaries for the discovery process.

Determining the Scope of eDiscovery

Review teams have several opportunities to set and revise the scope of eDiscovery in the early stages of this process. The first three stages determine the total volume of data involved in discovery, and the processing and review stages limit the volume of data based on responsiveness to discovery requests.

The scope of eDiscovery is often directly related to the costs involved in this process. Software and hardware solutions factor into the total cost of eDiscovery, as does the extent and duration of in-house data collection and billable hours for legal counsel.

By factoring in the nature of discovery requests, available resources and options for internal and external review, stakeholders can decide on the most effective ways to determine the scope of eDiscovery and control expenses at this stage of litigation.

Tips for Planning the eDiscovery Process

One of the best tips to streamline eDiscovery involves adopting and observing good information governance standards for ESI prior to discovery. With appropriate data governance practices in place, it can be easier to anticipate the scope of eDiscovery and estimate the amount of time and labor that will be necessary at each stage of the process.

Experts also recommend establishing a protocol or plan for handling ESI and digital evidence. This protocol should factor in the types of cases that are likely to require discovery and where relevant records are housed. Identifying which custodians are likely to produce relevant data for different types of cases can expedite the early stages of eDiscovery.

Other useful planning tips include determining best practices for culling data and handling privilege. An ESI protocol should specify which technological or legal resources are used for eDiscovery. Privilege can pose particular challenges when dealing with large amounts of data, and may justify creating a no-fault standard for inadvertent disclosures.

Data Management Strategies for eDiscovery

The Electronic Discovery Reference Model situates the current Information Governance Reference Model as a precursor to identification in the eDiscovery process. When best practices for data governance are in place, it is easier to identify information and reduce data volume from the Identification stage onward.

Structuring ESI with the demands of eDiscovery in mind can expedite the identification, collection and processing stages and the rest of the process. The IGRM model brings together practices for using, protecting, retaining and transferring data.

The EDRM organization recommends two data management strategies to allow for faster and more results-driven eDiscovery. Organizations can expedite the discovery process for ESI by regularly conducting data audits and maintaining up-to-date data maps.

Advanced eDiscovery Techniques and Technologies 

Industry-leading software makes advanced techniques and technologies available at every stage of the eDiscovery process. The latest techniques include new approaches to collection that reduce the burden of transmitting large volumes of information across business networks for preservation and collection.

Collection applications on custodian machines can run in memory and only back up relevant data. Self-collection is another trending technique, which can involve plugging a device into a custodian machine and running an app to generate an encrypted collection of responsive data.

Many types of eDiscovery software also incorporate cutting-edge technological innovations such as artificial intelligence, machine learning and predictive coding. These technologies narrow down data volume, identify responsive data and expedite the process of eDiscovery.

The Future of the eDiscovery Process

The model for eDiscovery is revised on a regular basis to account for changing techniques and technologies, but the basic process is well established. Cloud migration solutions from Cloudficient support comprehensive and efficient eDiscovery. Businesses retiring legacy systems and transforming operations into the cloud can benefit from our next-generation migration technology and affordable, fast, scalable and seamless services.

Contact us to learn more about how bringing Cloudficiency to your migration project can facilitate the eDiscovery process.