The Emergence of Electronic Discovery in Today's Litigation
By now, everyone has heard of electronic discovery but may not be familiar with the detailed process. E-Discovery is a process where lawyers collect, review, and produce electronic documents during the discovery phase of a case rather than boxes of paper. In the past, responses to requests for the production of documents involved simply searching for paper documents. These days, with the emergence of technology, discovery practices have evolved and changed our insight of what defines “responsive documents.” Not only can responses to requests for the production of documents come from paper documents, but also (and more often are) word documents, spreadsheets, PowerPoint presentations, and emails. These types of documents can reside on hard drives, CDs, disks, network servers, and back-up tapes. Broadly, the process of E-Discovery falls into the following four categories: Preparation, Collection, Review & Process, and Production.
Preparation
While undergoing the E-Discovery process, it is important to understand the nature of the electronic documents and files when looking for the “who, what, when, where, and subject” of the electronic documents. It is also very important to have a clear understanding about the processes and the technology being used when requesting electronic documents. Another important factor you need to consider is cost. The costs to collect and process electronic data are contingent upon two factors- time and the amount of data. Typically, E-Discovery vendors charge by the hour to collect the data and then charge a per image processing fee. Knowing the number of workstations, servers, back-up tapes, etc. can help when budgeting for E-Discovery.
Collection
Collection is the physical process where information is copied from the client's data storage systems and computers. It is necessary during this process for the collection to be done in a way that it copies the data exactly as is and does not change any of its profile characteristics such as metadata (author, recipient, creation date, modified date, doc type, etc.). To ensure proper collection, on-site data collection is the preferred method. This method ensures that you get a true “copy” of the data as it resides on their system. An alternative, but not preferred method to on-site collection is data provided to you on CD-ROM, disk, etc. and is only a copy of the file, and does not contain the “metadata” or behind the scenes information about a file.
Review & Process
Once information is collected, the E-Discovery vendor will then work with counsel to establish a set of terms that will be used to pull out the documents that may be significant to the litigation. These search terms are used to help scale down the massive collection of documents to a more manageable and relevant size. Remember, it is also important to have proper knowledge of search and retrieval software and training, and a significant amount of document storage space as well. Documents are then run through an E-Discovery software program, and then converted to group IV TIFF or PDF images where text can be extracted. De-duplication on the database to filter out documents can be done at this time as well. After all documents have been run through the software, the client will then receive TIFF or PDF images of the documents and corresponding text files. Some vendors provide “native” file review as well, which allows you to review electronic files in their native format. Occasionally, the E-Discovery vendor may come across “problem” documents such as password problems, unknown file type, corrupt documents, etc. When this occurs, the documents can be segregated and worked on individually to fix the problem with little exception handling. Reviewing and producing electronic documents is an extensive undertaking and should not be left to a legal assistant to read through using basic search and retrieval methods. Using an experienced E-Discovery vendor will help avoid the risk of providing too much or not enough producible data.
Production
After filtration, documents are ready to be reviewed and can be produced on a variety of external electronic media such as CD-ROM, DVD-ROM, disk, digital tape, or on secure online web repositories depending on the size of the collection. For time purposes, it is important to have an agreement upfront regarding which type of electronic media will be used. Now, you can search through the data quickly to find the exact information you need at any time.
Electronic Discovery Vendors
The E-Discovery process requires careful selection of your E-Discovery vendor. An E-Discovery vendor has the ability to work with a client's IT staff to distinguish where documents are stored, what format they are stored in, and how the data can be retrieved in a way that does not change it. Furthermore, E-Discovery vendors have the proper equipment and personnel to provide everything from pre-consultation and training to software applications and trial strategy.
Conclusion
More than 90% of all business documents exist electronically, many of which are never printed. The production of electronic documents and data is now a part of our litigation culture. By processing electronic documents electronically, lawyers and their clients can significantly cut discovery costs and save time by eliminating needless steps. Taking your time and educating yourself about E-Discovery vendors prior to needing them for a case will save you an enormous amount of time, effort, and money.
By processing electronic documents electronically, lawyers and their clients can significantly cut discovery costs and save time by eliminating needless steps.
