The information presented here is intended as a basis for discussion and analysis, not as a prescription for the one and only right way to approach e-discovery. A project may call for engagement in some, but not all, of the steps outlined.
Information Governance
Linking legal obligation and business purpose of specific information in order to have efficient, effective data management.
Getting your electronic house in order to mitigate risk & expenses should e-discovery become an issue, from initial creation of ESI (electronically stored information) through its final disposition.
Identification
Locating potential sources of ESI & determining its scope, breadth & depth.
Identification is used to identify potential sources of relevant information. These sources may include business units, people, IT systems and paper files. Learning the location of potentially discoverable data is necessary to issue an effective legal hold. Identification should be as thorough and comprehensive as possible. Conduct interviews with key players to identify what type of records they have that may be relevant. Interviews with IT and records management personnel may be used to identify how and where the relevant data is stored, retention policies, inaccessible data and what tools are available to assist in the identification process.
Preservation
Ensuring that ESI is protected against inappropriate alteration or destruction.
When duty to preserve is triggered, promptly isolate and protect potentially relevant data in ways that are: legally defensible; reasonable; proportionate; efficient; auditable; broad but tailored; mitigate risks.
COLLECTION
The collection methodology for acquiring ESI in litigation matters, governmental inquiries, and internal investigations in a legally defensible manner.
Collection is the acquisition of potentially relevant electronically stored information (ESI) as defined in the identification phase of the electronic discovery process. The exigencies of litigation, governmental inquiries, and internal investigations generally require that ESI and its associated metadata should be collected in a manner that is legally defensible, proportionate, efficient, auditable, and targeted. The process of collecting ESI will generally provide feedback to the identification function which may impact and expand the scope of the overall electronic discovery process.
PROCESSING
Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis.
At a point in the e-discovery lifecycle (“Lifecycle”) following preservation, identification and collection it often becomes necessary to “process” data before it can be moved to the next steps of the Lifecycle. Some primary goals of processing are to discern at an item-level exactly what data is contained in the universe submitted; to record all item-level metadata as it existed prior to processing; and to enable defensible reduction of data by “selecting” only appropriate items to move forward to review. All of this must happen with strict adherence to process auditing; quality control; analysis and validation, and chain of custody considerations.
REVIEW
Evaluating ESI for relevance & privilege. The goal of the review process is to gain an understanding of document content while organizing them into logical sub-sets in an efficient and cost effective manner. Develop facts, reduce risk, reduce cost, leverage technology, facilitate collaboration and communication.
Document review is a critical component to most litigation and is used to identify responsive documents to produce and privileged documents to withhold. It is the time where the legal team can begin to gain a greater understanding of the factual issues in a case and where legal strategies can emerge and begin to develop based on the type of information that is found in the collection of documents. There will inevitably be different strategies implemented for reviewing documents in preparation for production versus documents produced by opposing counsel, however the common thread is the need (a) to understand the scope of the review, (b) to put in place supervision and procedures for managing the reviewers and (c) to select the appropriate vendor, tools and platform for the review.
ANALYSIS
Evaluating ESI for content & context, including key patterns, topics, people & discussion.
As e-discovery tools and processes have matured, sophisticated analytics methods have been put to use in aid of more and more of the phases of discovery. Various analytics are being used to increase productivity through the whole process.
PRODUCTION
Delivering ESI to others in appropriate forms & using appropriate delivery mechanisms.
With the unprecedented increase in the amount of electronically stored information (ESI) that is being created and stored in the corporate community, there has been a corresponding increase in focus on how the data that has been collected and reviewed is ultimately produced in civil litigation and regulatory investigations. Because of the complexity, the potential costs and the significant risks associated with producing ESI, the topic has been addressed in a growing number of articles, white papers and judicial opinions. As a measure of the significance of the topic, production of ESI is addressed directly in the Federal Rules of Civil Procedure.1 For example, Rule 26(f) sets an expectation that the method and format by which ESI is to be produced should be considered and negotiated by the parties early in the discovery process. The production of ESI continues to present challenges in the discovery process even though specific rules have been drafted, commented on, redrafted and approved to address the issues.
PRESENTATION
Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience.
The presentation of electronically shared information can be a challenge for attorneys and paralegals. In the past exhibits were presented in paper form and still are in many cases today. Technology has developed over the last decade making it easier to present exhibits in near-paper or “image” format. Due to the nature of electronically shared information and the advent of native and near native document productions, some cases now require the legal team to present exhibits in native format.