It can still be challenging to explain what eDiscovery is and what we do in this industry, even after being in it for over a decade, particularly when my work area is in the black hole of information security and infrastructure.
I’m here to attend to the inquiry of friends and other IT colleagues that requested me to write an introductory article about eDiscovery, as clearly I can’t explain it or make sense of it orally.
When I started composing this introduction, I noticed that it was turning long and boring, so I decided to break it down into two parts – so here we go.
Introduction
eDiscovery (Electronic Discovery) is the process of identifying, collecting, processing, and reviewing electronically stored information (ESI) during litigation. It is a critical component of modern-day litigation as the vast majority of information is now created and stored electronically.
Principles of eDiscovery
The principles of eDiscovery are based on the idea that all relevant information should be identified, preserved, and produced in a manner that is defensible and proportional to the needs of the case. These principles are based on the rules of civil procedure in the United States, which govern the conduct of litigation and the exchange of information between parties.
Some of the key principles of eDiscovery include:
Proportionality: Information requested and produced during eDiscovery must be proportional to the needs of the case, taking into account factors such as the amount in controversy, the importance of the issues at stake, and the parties resources.
Preservation: Parties are obligated to preserve relevant information once litigation is anticipated or initiated, and failure to do so can result in severe sanctions.
Cooperation: The parties are expected to cooperate to ensure that eDiscovery is conducted promptly, efficiently, and cost-effectively.
Transparency: The parties must be transparent in their eDiscovery efforts, providing detailed information about the sources of information, the collection methods used, and the tools used to process and review the information.
The EDRM Framework
The Electronic Discovery Reference Model (EDRM) is a widely recognized framework for the eDiscovery process. The EDRM provides a high-level overview of the steps involved in eDiscovery and is useful for organizing and managing eDiscovery efforts.
The EDRM consists of the following stages:
Information Management: The first stage of the EDRM involves identifying and managing information that may be relevant to the case.
Identification: The next stage involves identifying potentially relevant information and sources.
Preservation: The third stage involves preserving potentially relevant information to ensure it is not lost or destroyed.
Collection: The fourth stage involves collecting potentially relevant information defensibly.
Processing: The fifth stage involves processing the collected information to make it searchable and reviewable.
Review: The sixth stage involves reviewing the processed information to identify relevant documents and data.
Analysis: The seventh stage involves analyzing the reviewed information to gain insights into the case.
Production: The final stage involves producing the relevant information to the opposing party.
Famous Use and Cases
Many high-profile cases have involved eDiscovery, some of which have set legal precedents and shaped the way eDiscovery is conducted today. Here are some examples:
Enron: The Enron case was one of the largest and most complex eDiscovery efforts in history. The case involved over 3.7 million pages of documents and resulted in new eDiscovery software and technology being developed.
Apple v. Samsung: The Apple v. Samsung case is a well-known example of eDiscovery in the context of intellectual property litigation. The case involved the production of large amounts of ESI, including emails, memos, and other documents.
Zubulake v. UBS Warburg: This case is widely recognized as a landmark eDiscovery case. The court in this case established the principle that the cost of eDiscovery should be shared by the parties and that the requesting party should bear the costs of producing ESI that is not reasonably accessible.
TL;DR
- eDiscovery is the process of identifying, collecting, processing, and reviewing electronically stored information (ESI) during the litigation process.
- The principles of eDiscovery include proportionality, cooperation, preservation, transparency, and defensibility.
- The goal is to identify and collect the minimum amount of data necessary to achieve the investigative objectives, while also ensuring that the data is preserved in a forensically sound manner and that the process is transparent and defensible, meaning that all steps are documented and can be supported in court if necessary.
- Throughout the eDiscovery process, it is important to maintain transparency and communication with all parties involved. This includes ensuring that all parties are aware of the data sources, collection methods, and processing techniques used.
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