Electronic discovery, or eDiscovery as it’s more commonly referred to, is a legal process in which electronic data is gathered and preserved for use as evidence in a civil or criminal case.
“Electronic data” encompasses any electronic information that may be relevant in a lawsuit, including emails, instant messages/chats, documents, audio and video files, social media, web sites, company databases and so on. It’s possible for a single eDiscovery project to house several gigabytes (GB) or even terabytes (TB) of electronic data.
Additionally, there are several steps in the eDiscovery process (which we’ll review later) and federal and state court rules mandate that strict protocols for handling electronic data must be followed throughout.
Due to the risks associated with mishandling electronically stored information (ESI), and the sheer volume of electronic data involved, many firms and legal counsel are investing in eDiscovery software to help them meet regulatory requirements and provide a traceable, defensible audit trail.
We’ve created this guide to help you better understand eDiscovery solutions and how they fit into the larger legal software market. Whether you’re looking to invest in eDiscovery software for the first time, or looking to replace your current system, this guide can help you make a more informed purchase decision.
Here’s what we’ll cover:
Before we dive into eDiscovery software, here’s a short overview of the steps involved with the eDiscovery and information governance process (source: EDRM.net, part of the Duke Law Center for Judicial Studies):
This process is set in motion at the onset of legal proceedings. Attorneys from both sides define the scope of eDiscovery, and then gather and preserve relevant ESI for processing, review, analysis and proper formatting for court.
eDiscovery software automates the eDiscovery process, helping to save time and reduce costs during the most intensive steps, e.g., processing, review and analysis.
These tools also help to centralize data, collating it in a searchable directory, and provide the appropriate governance over the data required for use in litigation. For example, solutions are equipped with real-time activity logs to track user activity within the system, which provides a traceable audit trail during legal proceedings.
Additionally, eDiscovery software is set up so as to ensure users stay compliant with federal and state regulations regarding data processing, sharing and security. For example, data is encrypted at transit and at rest, allowing legal professionals to safely store and share the data with relevant parties without compromising its integrity.
This is especially important with ESI because electronic data is dynamic, containing metadata such as author, modifier, date created/modified, time stamps, file properties etc. The original content and metadata for all ESI must be preserved and maintained during eDisovery. Mishandling electronic data puts legal counsel and their clients at risk for claims such as tampering with evidence.
Furthermore, in addition to offering eDiscovery software, it’s not uncommon for vendors to also provide several in-house services, including:
Look for the following capabilities as you compare eDiscovery solutions:
Helps to automate the preservation, collection and processing steps in the eDiscovery process. Users can drag-and-drop or upload files to the system from cloud-based repositories such as Box or Dropbox, or upload entire databases from other eDiscovery systems.
Includes automated virus scanning, optical character recognition (OCR), deduplication, metadata extraction, topic clustering, format conversion as well as document reporting, PDF splitting, organizational filtering or highlighting and custom tagging or labeling.
Helps to automate the processing and review steps in the eDiscovery process. Culling intelligence enables these tools to review electronic data for relevance and privilege and provide search results in batches, which makes it easier to review and organize. Set up queries by tags, metadata, keywords and other classifications.
Allows users to review search results, tag documents, add notes and flag or mark files as relevant or non-relevant for the case. Can include some degree of auto-privilege detection, where the tool flags files for potential privilege based on specific traits.
Run reports and analyze files based on several metrics, including categorization, email threading, similar document detection, keyword expansion, clustering, concept searching and language ID.
Helps to automate the production and presentation steps in the eDiscovery process. Allows for easy download and export of electronic data in several formats and users can run production reports on download size, files and formats included, related metadata and privilege notes and more. Can include auto-privilege detection.
Helps ensure the safe and secure storage and sharing of electronic data and protocols for federal and state regulations on the handling of ESI. Includes bank-level encryptions, permission-based user roles for activity within the system and application activity tracking, permission-based links for shared downloads and production receipts.
The main use cases for eDiscovery are:
The primary buyers of eDiscovery software include:
Law firms/attorneys/legal professionals: For all criminal and civil cases. In-house attorneys will also likely oversee any HR or compliance audits or internal investigations within a corporation.
Third-party service providers: For outsourced eDiscovery. If your firm or corporation doesn’t have the appropriate tools or resources to conduct eDiscovery in-house, you’ll have to outsource this function.
Corporations: For internal investigations and audits, typically conducted by HR, compliance and/or legal departments. Whereas eDiscovery for criminal and civil suites will be set in motion by legal proceedings, corporations may choose to run eDiscovery in the background of their day-to-day business functions. This allows them to browse electronic data in real-time to locate and remove data without business value, which helps them save on storage costs.
This process (to find and dispose of obsolete data), is also useful when upgrading hardware or moving to cloud-based services, as well as during mergers and acquisitions. This also prepares them for the possibility of litigation, prior to any actual legal proceedings.
Government: For safe and secure data transfer across government entities and chapters, as well as for aiding in the efficient response to FOIA requests, congressional requests and other federal regulatory requirements.
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