What is E-Discovery?
Many legal dramas show lawyers scouring through thousands of documents to find the “smoking gun” that will win the case. “Discovery” is a legal term for this process. It involves gathering and producing all relevant documents when a lawsuit becomes reasonably foreseeable. With advancements in technology, the discovery process has also become automated.
Known as ‘e-Discovery’, it is similar to discovery in many ways, but it involves Electronically Stored Information (ESI). ESI takes a variety of different forms including: word processing documents, emails, spreadsheets, text and instant messages, images and videos, and voicemails.
How Does E-Discovery Work?
The process based on the Electronic Discovery Reference Model (EDRM), which can be split into three distinct phases.
Phase 1: Identification, Preservation and Collection
Firstly, once a lawsuit is on the horizon litigants have a legal duty to preserve ESI. It is important to identify which documents are relevant based on the facts and the legal issues of the case. It is important to collect this information into a searchable database without altering the metadata attached. Metadata collects information about who created, amended or sent a document at specific times. Some documents sought can include financial statements, correspondence and contracts.
Phase 2: Processing, Review and Analysis
Secondly, this phase involves “cleaning up” up the documentation. This can be done by deleting duplicate documents and extracting individual files from large folders. Next, it is helpful to code the documents according to their importance and relevance to the facts. It is also handy to tag the author, recipient or date. It is in this phase that the parties may try to redact or withhold privileged communications. Lawyers play a crucial role here, in ensuring that the documents are ready to be discovered.
Phase 3: Production and Presentation
Finally, production is the act of disclosing the information to the relevant parties. You must exchange the information in an appropriate form, some examples include via USB or on a hosted on a website. On the other hand, presentation is when the information is displayed before the court in legal proceedings. You can present this information by printing out hard-copies of email threads, or displaying videos and images on large screens.
The Future of Discovery
In the legal technology landscape, e-Discovery is a relatively old concept. However with recent developments in Artificial Intelligence (AI) and document management software this process is becoming more and more automated. e-Discovery makes the discovery process more efficient, accurate and accessible. Further, engaging a lawyer that is familiar with this type of information governance is a great way to cut future litigation costs for your business.
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