What is e-Discovery?

Electronic discovery, or e-Discovery, is the discovery in legal proceedings where the information that is sought after is in an electronic format. This is commonly known as electronically stored information, or ESI.  ESI can include emails, websites, databases, and so on. ESI is considered different from paper information because of its intangible provisional form, volume, and persistence. ESI usually includes metadata that may serve importance to a case, such as a documents publication date.  The goal of ESI is obtaining information that is useful in developing relevant information for use in pre-trial motions as well as the trials themselves.

The e-Discovery Process

  1. Information Governance: Getting your ESI organized to reduce the risk and potential expenses in the event the e-discovery is an issue.  This applies to the initial creation of ESI all the way through its final disposition.
  2. Identification: Locating possible sources of ESI and determining its applicable depth and scope.
  3. Preservation: Ensuring ESI is not destroyed or altered.  The duty to preserve ESI begins when there a reasonable anticipation of litigation.
  4. Collection: Gathering ESI for further use, such as review or processing.  Collection is the transfer of data from a company to their legal counsel.
  5. Processing: Reducing the volume of ESI and converting it to more suitable forms for analysis.  Native files are loaded into a document review platform.  Additionally, metadata and text are extracted from the native files.
  6. Review: Evaluating ESI for relevance and privilege.  Document review platforms assist in this task, including rapid identification of potentially relevant documents and culling of documents based upon certain criteria like date range, keyword, etc.
  7. Analysis: Evaluating ESI for content and context, including topics, people, and key patterns.
  8. Production: Delivering ESI to other/opposing counsel using appropriate mechanisms and forms.
  9. Presentation: Displaying ESI before audiences, to persuade an audience, elicit more information, or validate existing facts and/or positions.

Why Is e-Discovery Important?

Exposure can come in many forms.  Emails containing bullying, sexual harassment, and other inappropriate behavior can lead to many serious legal problems.  Agreements and promises may be made that you are unaware of.  Proprietary, financial, or patient information may become exposed or leaked.  E-discovery can quickly give a person information regarding their exposure as well as the value of investing in litigation, or settling, to avoid excessive costs.  E-discovery separates the emotions of people from facts.  Being better prepared reduces the cost of litigation and gives someone a strategic advantage over their opponent.  It is not a magic box where documents go in and production comes out; e-Discovery is a collection of tools, methodologies, and workflows that, when used in the proper way, will yield optimal results.