What is involved in the eDiscovery Process?
Gary White – Waterford Technologies
E-discovery (electronic discovery) refers to discovery in legal or government investigations which relate to the exchange of information in electronic format. This data is subject to regional and national rules and set internal processes. Legal representatives will then identify the relevant data for legal hold which then needs to be extracted, analysed and exported for review.
The eDiscovery Process
Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence (for example the date and time a document was written could be useful in a copyright case).
The preservation of metadata from electronic documents creates special challenges to prevent spoliation. In the United States, electronic discovery was the subject of amendments to the Federal Rules of Civil Procedure (FRCP), effective December 1, 2006, as amended to December 1, 2010. In addition, state law now frequently also addresses issues relating to electronic discovery. Other jurisdictions around the world also have rules relating to electronic discovery, including Part 31 of the Civil Procedure Rules in England and Wales.
The identification phase is when potential documents are identified for further review. Custodians who are in possession of potentially relevant information or documents are identified. To ensure a complete identification of data sources, data mapping techniques are often employed. Since the scope of data can be overwhelming in this phase, attempts are made to reduce the overall scope during this phase – such as limiting the identification of documents to a certain date range or search term(s) to avoid an overly time consuming request.
This in itself requires a huge amount of financial commitment by an externally appointed organisation but also a huge time and resource commitment from the company in question to provide the relevant information in a timely manner whilst also managing to complete and maintain their usual duties. Some companies have software in place to quickly identify the groups, date ranges, keywords etc relevant and begin the collection process immediately. Other companies may need to call in a digital forensics expert to prevent the spoliation of data. The size and scale of this collection is determined by the identification phase.
Although thankfully this situation is very infrequent, the cost and consequences of such an investigation can be crippling not only financially but also to the overall reputation of an organisation. Also the numbers of different people both internally and externally that may be involved in an electronic discovery project: lawyers for both parties, forensic specialists, IT managers, and records managers, amongst others.
An eDiscovery Solution
A comprehensive archiving and compliance software package can allow organisations the safety net and comfort of having a system installed and ready for any potential investigations, modern processing tools can also employ advanced analytic tools to help document reviewers more accurately identify potentially relevant documents quickly and cost efficiently, whilst also achieving cost and time savings to other business critical elements of their organisations. These systems can also provide business critical analysis reporting for specific departments to ensure relevant internal and legal procedures are being adhered to in the first place.
Some archiving systems apply a unique code or digital stamp to each archived message to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.
Deletion or claims of non-retained electronic records are not enough and are often viewed by the court that the defendant deliberately acted in destroying relevant information and failing to follow the instructions and demonstrate care on preserving and recovering key documents(example below).
In 2006, the U.S. Supreme Court’s amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant message chats as likely records to be archived and produced when relevant. One type of preservation problem arose during the Zubulake v. UBS Warburg LLC lawsuit. Throughout the case, the plaintiff claimed that the evidence needed to prove the case existed in emails stored on UBS’ own computer systems. Because the emails requested were either never found or destroyed, the court found that it was more likely that they existed than not. The court found that while the corporation’s counsel directed that all potential discovery evidence, including emails, be preserved, the staff that the directive applied to did not follow through. This resulted in significant sanctions against UBS. (Awarded $29.3 Million Dollars) (Source, http://en.wikipedia.org/wiki/Zubulake_v._UBS_Warburg )
If you would like to learn more about how MailMeter can help you with eDiscovery in your organization find some information here http://www.waterfordtechnologies.com/