What is eDiscovery? In the legal system, “discovery” is the term for the legal process that governs the obligation to produce and the right to obtain information for the sake of a legal investigation or court case. It specifically relates to the production, identification, collection, review, tagging, and exchange of non-privileged information.
Electronic discovery, also known as eDiscovery or e-Discovery, is the term for the discovery process when it is applied to ESI (electronically stored information). ESI can include emails, presentations, documents, databases, voicemail, audio or video files, websites, and social media posts, among other things. Malware such as trojans, viruses, and spyware can also be investigated.
E-discovery can take place on a network or offline on a specific computer. It can also include government-sanctioned or court-ordered hacking for the purposes of obtaining evidence.
Digital data is easier to investigate than data contained in paper documents for a number of reasons. First, it can be searched electronically, which is much faster and more accurate than manually reading over hard copy documents. Secondly, it is much more difficult to destroy digital data, especially if it gets into a network. The data will appear on multiple hard drives and even if they are deleted, files can be undeleted.
Cyberforensics, or computer forensics, is a specialized kind of e-discovery in which the contents of the hard drive of a specific computer are investigated. The computer is physically isolated and then a digital copy of the hard drive is made. The original computer is locked up in a secure facility and all investigation is carried out on the digital copy of the hard drive.
When a subpoena is issued requesting digital information from the parties, eDiscovery software is used by lawyers, law firms, and corporate legal departments to collect metadata, filter the information, and then review it to determine its relevance to the case at hand.
To qualify as eDiscovery software (also known as document review software), a product must be able to gather and classify data and then filter and sort the files in order to pull out the data that is relevant to the case. Common actions that eDiscovery software can take include file indexing, data ingestion, virus scanning, and optical character recognition (OCR)
One of the benefits of eDiscovery software is that it can cull out duplicate or irrelevant files, which means that the people doing research for the case have much less material to review. Cloud-based eDiscovery software has the added advantage of being able to produce, upload, and review documents online without having to deal with manual review, legacy software, or third-party vendors. .
The technologies and processes surrounding e-discovery can be complex because so much data is involved. Electronic documents are also much more dynamic than hard copy documents and can include metadata such as author and recipient information, time and date stamps, and file properties. The original content and metadata must be preserved so that later in the litigation process no one can claim that the evidence was tampered with or otherwise spoiled.
After both parties identify all data, any (electronic and/or hard-copy) documents that are potentially relevant will be placed under legal hold. This means the documents cannot be deleted or modified in any way. Data are then collected and extracted by the eDiscovery software, which integrates with file storage, database, and backup systems and other case management tools.
After the data are indexed in a database, they are then analyzed in order to cull whatever is not deemed relevant. The data that are extracted for use in the case are hosted in a secure environment where they are coded (often paralegals or contract attorneys) based on relevance.
Sometimes the relevant documents are converted into TIFFs or PDFs so that privileged or irrelevant information can be redacted. Predictive coding, CAR (computer-assisted review), TAR (technology-assisted review), and other analytic software helps to reduce the number of documents that the attorneys need to review, as well as to prioritize the documents they do review. This cuts hours spent on the case and therefore the cost of attorney fees.
Many law firms continue to use outmoded methods, such as paying paralegals an hourly fee review case-related ESI manually. This approach is long, cumbersome, and can often result in errors. E-discovery software improves and expedites the entire e-discovery process by identifying relevant documents more accurately and more efficiently and therefore making the legal proceedings less costly.
Benefits of eDiscovery software include:
Features to look for in an e-Discovery solution include: