eDiscovery or Electronic discovery is the electronic aspect of identifying, collecting and producing electronically stored information (ESI) in response to a request for production in a lawsuit or investigation. It is a crucial litigation and investigation asset and includes, but is not limited to information stored in, emails, documents, presentations, databases, voicemail, audio and video files, social media, and websites.
The term 'eDiscovery' is actually fairly new in the world of legal jargon - with its first official use being in 2005 when the US Supreme Court amended the Federal Rules of Civil Procedure (FRCP) to include a section on electronic records. Before the invention of email and other such 'instant messaging' softwares, there was just 'Discovery' plain and simple... though simple it was not!
Prior to the rise of eDiscovery, the discovery process was incredibly laborious and time-consuming. It involved a team of lawyers sifting through pages and pages of correspondence, bills, testimonies etc. if it had the potential to be relevant to a case it was shoved in a box and reviewed. This became significantly more complicated when email was invented. Empowered by the ease of communication, suddenly the one to two boxes of letters became five to six boxes of emails, not to mention they had to be accessed and printed before they could even be reviewed! The old ways weren't working anymore in this new age of data and so eDiscovery was born.
Most of the complexity surrounding e-discovery arises due to the sheer volume of electronic data that has to be collected and stored. Unlike hardcopy evidence, electronic documents are far more dynamic and contain information we call metadata. Metadata is all the background information that makes up an electronic document such as time-date stamps, author and recipient information, and file properties. Preserving the original content and its metadata for electronically stored information is a necessity in order to eliminate claims of spoliation or tampering with evidence later in the litigation.
Spoliation - The act of ruining or destroying evidence.
With the penalties for spoliation being markedly severe, the importance of a thorough and forensic data collection process cannot be overstated. Forensic data collection is the process of creating an uneditable image of a document and its metadata. This allows for the handling and processing of the documents without the risk of making accidental changes to its metadata, which can not only leave you open to spoliation issues but can also severely impact the efficacy of the following document review. Forensic data collection professionals can also see where files and data have been deleted to potentially hide evidence and can in some cases restore that information.
Many law firms/legal departments decide to procure outside services to aid with data collection due to the complicated nature of forensic collection, however, it is possible to self collect if you are very sure of what you are doing. Though we would ALWAYS recommend seeking professional help with such complicated matters, we have also produced a handy guide on using a piece of software called 'FTK Imager' that will allow you to self-collect evidence in a slightly more robust way.
The eDiscovery Process:
The overarching eDiscovery process is laid out in full in the EDRM - The Electronic Discovery Reference Model. This describes in detail everything from information governance (what information, where and why) through to production and the presentation of your findings in court. While the EDRM is incredibly thorough, we find that when most people ask 'What is eDiscovery?' they are usually referring to the inner portion of the reference model from collection to production, so this is where we shall focus our attention.
The goal of eDiscovery is to take a high volume of potentially relevant data and, following the eDiscovery process, whittle it down to be a small volume of definitely relevant information.
Step 1 of the eDisocvery process is the collection of data as discussed above. Once the potentially relevant data has been identified by each party this data is collected and hosted within a database or review platform - this is usually the point at which an eDiscovery provider like Altlaw first gets to interact with your case and your data. Here at Altlaw, we have a six-step eDiscovery process that is a standard for most cases we work on, however, each and every case is unique and will call for its own specifications and adjustments.
Our Six-Step eDiscovery Process consists of:
1. Data Collection
2. Data Transfer
3. Data Processing
4. Early Case Assessment
5. Document Review and Exchange (Production)
6. Case Termination
Data collection and data transfer both refer to the processes involved in getting your data into a secure hosting platform in which data manipulation can take place. Data processing is where we first begin to filter and reduce the number of documents in your 'potentially relevant' pile. This involves extracting out all the metadata from your documents and using this to organise and streamline your data, and making use of de-duplication/de-NISTing. De-duplication/de-NISTing searches through the uploaded documents and automatically discards obviously irrelevant documents like software load files and duplicated emails etc. This means that when you begin your Early Case Assessment (step 4) you are only dealing with potentially useful data in the minimum quantity possible.
Early Case Assessment is where the fun really begins. This is where an effort is made to reduce the number of documents to review by actively searching for documents more likely to be relevant to the case, rather than just discarding irrelevant ones. This is most commonly achieved by Keyword Searching and the use of other tools such as email threading and concept clustering. Keyword searching is the process of picking out potentially relevant documents based on a selection of keywords these documents might contain that have been deemed pertinent to the case. These keywords are usually pre-determined by your team, but new words can be added at any time throughout this process.
Once you have reduced the number of documents down into a reviewable amount you can begin the document review process. This entails reviewers (lawyers, paralegals, law students etc.) reading through each of the potentially relevant documents and coding them for relevance. Here coding simply means checking certain pre-determined boxes that signify whether or not a document is relevant, privileged, in need of redaction etc. The coding options available are configured for each individual case.
Upon completion of your review, you should have a significantly smaller volume of documents relevant to your case. At this point, you can produce these documents, either electronically or in hardcopy. For production, sometimes the relevant documents are converted to a static format such as TIFF or PDF, making redaction of privileged and non-relevant information possible. Once the necessary redactions etc have been completed you can then present your documents to the court as evidence, or you can archive them depending on the timeline of your case.
For more detail on our Six-Step eDiscovery Process check out our blog on the subject! Either click on the image above or follow this link.
Review:Though it only makes up part of the 5th step of the eDiscovery process, the document review portion of an eDiscovery project is easily the most time-consuming and budget heavy portion of the process. There are two ways in which a review can be facilitated by a third-party eDiscovery provider, either software licenses can be provided to allow your own team to carry out your review in-house, or a managed review can be arranged for you.
Regardless of which review option you choose, there are certain steps you will have to take and certain services you can expect to receive from your solution provider.
The first thing you will have to do prior to commencing your review is to produce a Review Protocol. This is a document that lays out in explicit detail exactly what kind of information makes a document relevant, the key people and important facts of the case. The more thorough your Review Protocol, the more efficient your review will be. Education your reviewer pool as much as possible on the matters of the case is the best way of ensuring your review runs smoothly and can even speed up the review process!
Crafting a review protocol can seem daunting, especially if it is your first time or a particularly complex case. In order to support you through this, we have created a comprehensive guide that you can access here!
The next thing you can expect to occur is your training. Your service provider should facilitate the training of your team, or the reviewers hired on your behalf on the matters of the case and how to use the chosen software. All clients undertaking projects with Altlaw are provided with in-depth training on the RelativityOne platform and access to the Altlaw Ingenium, a members-only area where we have compiled a number of resources to help guide reviewers and team leaders through the review process.
Once your training has been completed your review can begin in earnest. With project managers available to answer your every question this, though time-consuming, should be a relatively stress-free process, especially if you make use of the latest technological advancements such as TAR (Technology Assisted Review) to aid your team.
Technology-Assisted Review (TAR), specifically the use of Active Learning is a topic often talked about on the Altlaw blog and our social platforms as there are many areas in which technology can be employed to speed up your eDiscovery process, reduce costs and boost efficiency. We have mentioned a few already such as keyword searching and concept clustering tools, but when talking about TAR, it's the Active Learning tool everybody wants to learn about, and we don't blame them... It's great!
Active Learning, sometimes called TAR2.0, is the practice of using a computer algorithm to aid your reviewers in their relevancy review. It is the latest in cutting-edge legal tech and as such does not require pre-training on a sample set of data like other methods of predictive coding. Instead, Active Learning takes information from each and every coding decision made by your reviewers as they review your live document pile, and supplies the reviewers with documents it deems to be most likely to be relevant. This is based on the content of the document and how it compares with other similarly designated documents.
While learning from your reviewers what content makes a document most likely to be relevant, the algorithm also creates a collection of documents that don't match the relevance characteristics that are then suppressed from being shown to the reviewer. Your initial lump of documents gets broken down into two different, considerably smaller, piles without your reviewers having to review each and every one. This saves an inordinate amount of time and, as long as your reviewer coding decisions have been accurate, you have a high chance of having found all relevant documents.
Of course, as a machine it is only as good as those who program it/use it, therefore there are safety protocols in place to ensure that no documents slip through the net. The Elusion Test is a test run at the point your review appears to be at an end and it checks for potentially missed documents in the 'discard' pile. Based on the confidence level you would like to achieve and other statistics of a similar vein your reviewers will look through a small portion of the not-relevant documents to look for any misclassification. You then receive a prediction of how many documents you may have missed in the discard pile allowing your project leader to come to an informed decision on whether or not to continue the review.
We have an in-depth blog post detailing the Statistics Behind the Elusion Test should you wish for further information.
So there you have it, that is eDiscovery in a concise form. There are of course adaptations, specialisations and exceptions to every rule, as each project is unique and needs to be treated as such. Please feel free to follow any of the links included in this blog, or peruse our website for further information on all things eDiscovery. Alternatively, our team is always willing and ready to help if you would like to speak to someone directly. You can contact us here!