In the past decade, we’ve witnessed the digitalization and automation of the workplace, so most business records also became digital. As new technologies made way for extensive storage systems, companies began to store more digital records than ever.
In case of litigation, it might seem like searching through these digital records is more straightforward than handling physical ones. While this might be true, reviewing electronic records is not without its challenges.
Litigation is a dynamic, complex, and unpredictable process. From the moment the litigation starts until the moment a settlement is reached, you can’t let anything slip through the cracks. The stakes of litigation are high, so it is crucial to meet all requirements of the court and to justly present your data while also managing budget, time, and risk.
Let’s dive deeper into what the process of eDiscovery is like and what steps you can take to prepare for it properly.
What is eDiscovery?
Electronic discovery or eDiscovery is a process in which a company collects, reviews, and preserves electronic records to use them as evidence in a legal process.
These electronic records are also known as electronically stored information (ESI) and come in many different formats — from different types of electronic documents to various communication records such as email, social media, and instant messaging data.
The process of eDiscovery is often considered a part of information governance – an approach to managing internal information that involves technology, people, and techniques that make sure that internal information is appropriately generated, organized, and disposed of.
Stages of eDiscovery
The process of eDiscovery has a lot of moving parts, and it typically includes these six stages:
- Identification – The first step of the process includes locating sources of electronically stored information and determining if it’s relevant to the case in question.
- Preservation – Once the relevant information has been identified, you need to make sure that this data is tamper-proof and can’t be altered or deleted, neither deliberately nor accidentally.
- Collection – Next, you should gather relevant data that will be used in the eDiscovery process from different sources. This step is crucial as unstructured data usually resides on different locations, such as separate devices, email, instant messaging, etc. So you need to carefully gather the information that’s scattered across the organization in one place.
- Processing and Review – Now that you have all your data in one place, you might have to convert it to a form that’s more suitable for analysis. That way, you’ll be able to process and review the data correctly.
- Production – After reviewing, electronically stored information should be delivered to all the parties in dispute.
- Presentation – The last step of the eDiscovery process is presenting the collected information before an audience, for example, in a trial.
Common challenges of eDiscovery
Keeping track of your data
One of the first challenges you’ll encounter in the process of eDiscovery is the sheer volume of records companies are able to keep nowadays.
As companies are increasingly becoming more digital, they are leaving a daily trail of electronic evidence that often reveals every single move they make. The convenience of digital communication and collaboration encourages organizations to produce vast amounts of digital records. Moreover, with virtually limitless storage space, it’s easy to fall into a trap and start hoarding documents, even the unnecessary ones.
However, what many seem to forget is that all of these records are subjected to eDiscovery.
This flood of digital records considerably complicates a once much simpler system of eDiscovery, and it doesn’t seem like the number of records available for eDiscovery will start to decrease any time soon.
As a part of a compliance request, a regulatory body for your industry may ask you to disclose some information. You also might be asked by a court or a judge to present information as part of a legal case.
Data regulations are constantly tightening and, with new legislation across the globe, there are more eDiscovery requests than ever before.
Depending on a court or a relevant regulatory body that requested information, you may be required to produce data in weeks and sometimes even days.
These tight deadlines can be quite an issue, especially considering that you’ve probably been collecting data for years and now have to search through all of it in this short amount of time.
Without a set eDiscovery plan, it might be quite tricky or even impossible to meet these deadlines, which can lead to hefty fines and penalties, both legal and financial.
Moreover, if you don’t have a dedicated team or an eDiscovery solution, you might have to hire an around-the-clock eDiscovery team to search for the requested data just to meet the deadline, and this can also be quite costly.
Metadata makes eDiscovery more.
An even bigger issue with eDiscovery lies in the fact that electronic records also possess metadata. This hidden information isn’t visible front and centre, and it’s easy to alter or overwrite, destroying valuable evidence you might need for a legal case. Some of the examples of critical metadata include date created, date modified, authorship, and even location.
Collaboration between legal and IT department
Another potential challenge of eDiscovery is that this process requires both legal and technical expertise. It calls for a close collaboration between a company’s IT team and legal team. However, they don’t always work well together. These departments are fundamentally different, and they almost speak different languages, so the communication gaps can occur and potentially compromise the success of eDiscovery.
How to prepare?
Assemble a team
To be able to respond quickly, it’s necessary to know exactly who you should turn to in case of litigation.
That’s why you should assemble a team in advance. As mentioned before, you need both legal and IT professionals for efficient and successful eDiscovery.
The type of legal representation you need in your corner in case of litigation depends on numerous factors, including the resources you have on hand and whether you already have a dedicated legal team.
If you already have an in-house legal team, they should be able to handle the eDiscovery process in collaboration with your It department. However, if you don’t have one, you should probably hire legal professionals to help you run this process smoothly.
Create a data map
Another step you should take to prepare for eDiscovery is to create a clear data map.
A data map represents a list of all sources of potentially relevant electronic records held by an organization. This encompasses everything from email servers and cloud storage to devices such as hard drives, laptops, phones, surveillance cameras, etc.
Some of the crucial information a data map should include is who has access to each electronic record as well as a point to the person who manages each data source.
The data map should be put into writing with a date of creation, and it should be reviewed and updated regularly.
Draft a retention policy
Besides a detailed data map, you also need to create a retention policy. This policy should outline how long each type of data needs to be retained.
Retention periods will vary from organization to organization, depending on the industry, business size, and maybe even the type of data you’re dealing with. You don’t have to keep all of your records all the time, and the retention policy will help you create retention schedules and delete unnecessary data once the retention period has expired.
To make retention and eDiscovery easier, you can rely on solutions such as email archiving. Archiving solutions make eDiscovery much less stressful as they can help you automate retention and mitigate the risk of mistakes.
They also allow you to easily search your archive and extract email records in case of litigation. Email archiving enables you to seamlessly find data, perform advanced searches thanks to indexing, ensure data authenticity, and preserve all relevant information as soon as litigation is anticipated.
Implement a litigation hold procedure
While retention policy dictates the regular schedule by which a company’s records will be destroyed, a litigation hold suspends this planned schedule and stops the removal of records.
Litigation hold procedure covers outlining the litigation at issue, identifying the type of electronic records relevant to the case, and clearly determines that those records must be protected from destruction and preserved from any alterations.
The hold should stay in effect until the lawsuit in question has been completed.
Nowadays, litigations happen more often than ever, so you can’t afford to think it won’t happen to you and be unprepared.
In order to be able to adequately respond to litigation, you must take all the necessary steps to prepare for the eDiscovery process in advance. Reviewing and collecting electronic records once a legal process has already begun can be highly stressful and can disrupt your business operations if you’re not properly prepared.
Following these tips will help you create an eDiscovery plan that will seamlessly handle your records in case of litigation.