Please enjoy this blog posted on behalf of the author, Doug Austin, Editor of eDiscovery Today.
Providing legal services in an era involving the cloud, social media, remote work and collaboration and artificial intelligence is more challenging than ever. Most of the evidence we work with today is generated electronically using technology, so having a basic understanding of electronic discovery is a “must” for any legal professional today.
This article is designed for “newbies” of “eDiscovery” to help you understand what eDiscovery is, important terms to know, types of discoverable electronic evidence and how eDiscovery is conducted.
What is eDiscovery?
Simply put, electronic discovery (eDiscovery) is a technology enabled workflow applied to electronic evidence to support legal use cases. The term is based on the “discovery” phase of litigation. However, the term “eDiscovery” is no longer limited to litigation – it can apply to any legal use case involving electronic evidence!
Five eDiscovery Terms You Need to Know
While there are many terms associated with eDiscovery you’ll need to know eventually, here are five terms you will hear regularly that will help you begin to “talk the talk” associated with eDiscovery:
1. Electronically Stored Information (ESI): Information that is stored electronically and could be subject to electronic discovery.
2. Duty to Preserve: Duty arising under the law, upon reasonable anticipation of litigation, to preserve evidence, including ESI.
3. Metadata: Structural information of a file that contains data about the file, as opposed to describing the content of a file (i.e., “data about data”). The duty to preserve includes metadata.
4. Native Format: An electronic document’s original form, via the application that was used to create the document. Converting native files to imaged formats, like TIFF or PDF, doesn’t preserve the native metadata.
5. Spoliation: The destruction of evidence and information that may be relevant to ongoing or reasonably anticipated litigation, government audit or investigation.
It’s important to understand what ESI is, that you have a duty to preserve ESI as soon as you anticipate litigation, that duty includes preservation of metadata, which is available in the native format of ESI and that spoliation of that ESI can result in sanctions.
Types of Electronic Evidence
The types of discoverable electronic evidence have exploded in recent years. Examples include:
- · Emails
- · Office files
- · Mobile device data
- · Text and chat data
- · Data from collaboration apps, like Slack and Teams
- · Social media posts
- · Multimedia files
- · Database files
- · Wearables and Internet of Things (IoT) device data
This Internet Minute infographic illustrates the extent to which ESI is being generated every minute of every day!
How eDiscovery is Conducted
The phases of eDiscovery can be best illustrated by the Electronic Discovery Reference Model (EDRM model) which has become the standard representation of the flow of ESI through the life cycle of the case. The left-hand side shows the Information Governance phase, which is the one phase that is not specifically related to a case – it is perpetual, which is why it is represented as a circle.
Once the need for a legal use case is identified (such as reasonably anticipated litigation), eDiscovery starts by identifying and better understanding potentially responsive ESI. Potentially responsive ESI is preserved and collected for use in the case, processed (e.g., to cull duplicative or clearly non-responsive information), analyzed to identify patterns and key information and reviewed to make responsiveness and privilege determinations (among other things). Ultimately, responsive, non-privileged ESI is produced to opposing parties and key ESI is presented (e.g., at depositions and trial) to support the goal of the case. While workflows evolve and differ, every eDiscovery project will have these phases associated with it.
Understanding what eDiscovery is, key terms to know, the types of discoverable ESI and the EDRM model is an important first step to understanding eDiscovery. The rest is up to you!