Electronic discovery, or most commonly referred to as “eDiscovery” or “e-Discovery”, is the exchange of digital information for use as potential evidence a trial. eDiscovery can be viewed as a specific form of “discovery”. It is the process by which evidence are requested, obtained, and exchanged between parties during litigation and investigation — such that it exclusively deals with Electronically Stored Information (or “ESI”).
ESI includes but isn’t limited to the following: digital documents, emails, texts, chats, databases, websites, video, audio, and image files, word processing and spreadsheet files, website activity and history, computer programming information, geolocation information on devices, and even information posted on social networking sites.
After ESI have been identified by both parties, potentially relevant documents are placed under legal hold so they can’t be modified or destroyed. They are then collected, extracted, and placed into a database where they are analyzed to cull or segregate irrelevant ESI.
eDiscovery is governed and regulated by the Federal Rules of Civil Procedure (FRCP) which was amended in 2006 and 2015 in order to specify guidelines pertaining to eDiscovery. But it’s important to note that each state may have eDiscovery rules that differ from the FCRP.
Discovery is a relatively straightforward process involving a written requests by each party to furnish information they deemed relevant by describing the documents and records of interest they need to support the claims in a case. The requested party is then expected to locate and produce the evidence (or an authenticated copy of it) and are allowed to withhold/redact items with privileged information. However, they are obligated to provide a log describing the withheld/redacted information.
eDiscovery more or less follows the same process. However, the nature of the documents and potential evidence being requested poses certain challenges:
The biggest issue with eDiscovery is the amount of information a firm needs to request, send, and analyze. We’ve mentioned beforehand the various potential sources for ESI.
Let’s take for example a laptop or an office PC: a single computer alone contains terabytes worth of word documents, spreadsheets, activity and history logs, and so on. Even if we narrow it down to a single email address, there’s still thousands of emails one needs to analyze, segregate, and tag for one case.
Manually clicking through gigabytes and terabytes of ESI can an attorney or their staff cost hundreds of valuable hours. Not to mention the amount of money and resources you need in order to safely store and process this information.
Even the most tech-savvy lawyer, paralegal, or legal secretary may find eDiscovery as a maze of technical jargons and restrictions. Contrary to popular belief, eDiscovery is not as simple as just making copies of documents or emails. There’s a lot of data sources that may not be obvious to the firm, or certain network and security restrictions that may make it difficult for untrained staff to navigate. Furthermore, one has to ensure that ESI being collected have not been tampered, or that particular ESI being requested have not been deleted.
Even with redactions, ESI contain valuable and/or sensitive information. If any of this information are leaked or destroyed, it won’t only have a huge negative impact on the case but the firm itself. One has to ensure the safety and confidentiality of the ESI being stored and analyzed to prevent costly data breach.
Lack of technical knowledge about eDiscovery can result to a party being unknowingly harassed or confused by the opposing counsel by being bombarded with requests for irrelevant documents — an act which is highly prohibited. Conversely, the same lack of expertise in eDiscovery can result in your party to either end up collecting pools of irrelevant data to process or unintentionally harassing the opposing counsel as well.
It’s because of these challenges that companies offering eDiscovery services or eDiscovery solutions software exists. Which brings us to the question of whether your law firm should handle its own in-house eDiscovery by using eDiscovery software, or by outsourcing eDiscovery services.
Firms that utilize eDiscovery software have full control of the data they collect, as well as the data being requested from them; this is in contrast to outsourcing where data is processed by a third party. Furthermore, eDiscovery software allows you to easily sort and access a hodgepodge of data.
The leading eDiscovery software in the market are ISO certified for encryption and security, so you wouldn’t have to worry about data breaches. Many eDiscovery software also come with tools that make it easier to identify, suggest, and redact sensitive content to help firms comply with relevant privacy laws.
Outsourcing allows your firm’s lawyers and staff to focus on other activities requiring their valuable time and expertise, instead of having to spend hours processing ESI — even when using eDiscovery tools.
Whether it’s human error or an issue with the computer, any failure during eDiscovery can be used against your party. Say for example, your firm’s staff or internal department in charge of eDiscovery accidentally modifies or deletes a document. The opposing counsel can claim that such incident was intentional, and it’s easier for them to sell this story if it was your firm that made the mistake. However, outsourcing eDiscovery can save your firm from such allegations.
While eDiscovery is commonplace, not all cases require the ESI. As such, you can minimize your costs by only paying for eDiscovery services when it’s needed.
So, which one should your firm choose? The answer: either works. A bit anti-climactic but hear us out.
The options of using eDiscovery solutions software and outsourcing eDiscovery services each have their own merits, disadvantages, and risks. A lot of firms have their own in-house eDiscovery because they can afford it, and they desire to maintain control of their data. However, just as many firms prefer outsourcing despite being able to afford in-house because they’d rather allocate resources elsewhere and also minimize risk.
Whichever eDiscovery option your firm chooses, it’s important that you do so intelligently by assessing your firm’s resources and needs. Circling back to the challenges of eDiscovery, the WORST decision you can make is using neither option and do the entire cumbersome process manually.
LegalMatch’s legal marketing services provides member lawyers with excellent lead generation system to ensure a steady flow of local clients. With LegalMatch’s attorney-client matching platform, lawyers are able to obtain relevant information that’s normally acquired during initial consolation. This allows attorneys to assess whether the potential client’s legal concerns fall within their area of expertise, even before any actual communication happens!
LegalMatch also offers in-house training for industry best practices. This includes the use of the LegalMatch own web and mobile app, as well as other third-party tools being used by our best-performing member lawyers. These include eDiscovery software and services in order to maximize their law firm’s productivity.