eDiscovery
ERM Community Wiki
Discovery is the term used for the initial phase of litigation where the parties in a dispute are required to provide each other relevant information and records, along with all other evidence related to the case. In 2006 amendments to the US Federal Rules of Civil Procedure, codified the requirement to provide electronic information and records, referred to as electronically stored information (ESI). These changes brought about the term e-discovery or Electronic Discovery and includes all electronically stored information which would include:
- Word documents
- Spreadsheets
- Email
- Audio and video
- Tweets
- Blogs
- ANY piece of electronic content
Regardless of industry or company,
you can’t afford to ignore ediscovery The effort to comply with an e-discovery request is often time-consuming and expensive due to the volume of information and records created and stored in electronic form, typically throughout the enterprise in an unstructured manner on network drives, personal computers, and PDAs. You need to be
prepared for ediscovery. Part of the preparation is ensuring that you can
preserve your electronic documents You especially need to take steps to
get content on the edge under control.
Email is, of course, a huge issue in the context of ediscovery.
Ediscovery can be costly, but you can
reduce the costs by following sound
retention schedules. It’s pretty simple, the less content you have, the less time it will take to sort through and the less you’ll be charged by the lawyers.
The key to addressing e-discovery is to be proactive in the management of information and records with control over the handling of potential e-discovery requests. One key step to be proactive is knowing where your content is; so
creating a data map prepares you in the case of litigation.
Records management professionals must work with the legal staff and IT to develop a records management program that will
support an e-discovery effort. Records management policies and procedures must be developed, establishing a strong records management discipline among
employees in managing their information and records. This policy should stress that:
- Information without business value must be disposed of according to policy and in the normal course of business
- Records that have value to the organization must be stored and managed properly, under the control of the organization
- A classification scheme providing an information and records management structure must be implemented for consistency and control
- Records that are no longer needed must be destroyed in a systematic and documented way, provided that there is no legal hold in place applying to those records
MoReq 2 outlines a number of requirements that records management products should be able to perform in the context of e-discovery. These requirements include:
5.1 Retention and Disposition Schedules;
5.2 Review of Disposition Actions;
5.3 Transfer, Export and Destruction; and
4.2 Audit Trails.
The Electronic Discovery Model (EDRM) lists the following stages for the discovery process:
- Information management: Refers to effective management of ESI throughout its lifecycle.
- Identification: An organization’s legal staff determines the scope of ESI that might be pursued during a particular discovery event and works with IT to determine the repositories and/or email mailboxes to be searched.
- Preservation and collection: To protect against destruction or alterations, the organization imposes legal holds on ESI that’s likely to be relevant to the discovery event. This ESI is then gathered from its various sources – e.g., shared drives, hard drives, tapes, etc.
- Processing, review, and analysis: Most organizations use third-party legal services firms to assist with the processing step, which involves searching the designated repositories and mailboxes for documents relevant to the discovery event, as well as removing duplicate documents. The ESI that emerges from the search is then converted from its native format to a format that’s easier to review. Internal and external counsel then review and analyze the ESI resulting from this search, document by document (open a document, scan through its contents, and review for relevance and privilege), looking for key topics such as names, specific vocabulary, and important individual documents. This entire processing, review, and analysis stage is often an iterative process, and may also involve redaction.
- Production: ESI relevant to the discovery event is then delivered to designated recipients on various media (e.g., CD, portable storage device, paper).
- Presentation: The ESI is presented as evidence at depositions, hearings, and/or at trial.
