Community hub
Community hub
Recent from talks
Knowledge base stats:
Talk channels stats:
Members stats:
Electronic discovery
Electronic discovery (also ediscovery or e-discovery) refers to discovery in legal proceedings such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format (often referred to as electronically stored information or ESI). Electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.
Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence (e.g. the date and time a document was written could be useful in a copyright case). The preservation of metadata from electronic documents creates special challenges to prevent spoliation.
In the United States, at the federal level, electronic discovery is governed by common law, case law and specific statutes, but primarily by the Federal Rules of Civil Procedure (FRCP), including amendments effective December 1, 2006, and December 1, 2015. In addition, state law and regulatory agencies increasingly also address issues relating to electronic discovery. In England and Wales, Part 31 of the Civil Procedure Rules and Practice Direction 31B on Disclosure of Electronic Documents apply. Other jurisdictions around the world also have rules relating to electronic discovery.
The Electronic Discovery Reference Model (EDRM) is an ubiquitous diagram that represents a conceptual view of these stages involved in the ediscovery process.
The identification phase is when potentially responsive documents are identified for further analysis and review. In the United States, in Zubulake v. UBS Warburg, Shira Scheindlin ruled that failure to issue a written legal hold notice whenever litigation is reasonably anticipated will be deemed grossly negligent. This holding brought additional focus to the concepts of legal holds, eDiscovery, and electronic preservation. Custodians who are in possession of potentially relevant information or documents are identified. Data mapping techniques are often employed to ensure a complete identification of data sources. Since the scope of data can be overwhelming or uncertain in this phase, attempts are made to reasonably reduce the overall scope during this phase—such as limiting the identification of documents to a certain date range or custodians.
A duty to preserve begins upon the reasonable anticipation of litigation. Data identified as potentially relevant during preservation is placed in a legal hold. This ensures that data cannot be destroyed. Care is taken to ensure this process is defensible, while the end goal is to reduce the possibility of data spoliation or destruction. Failure to preserve can lead to sanctions. Even if a court does not rule that the failure to preserve is negligence, they can force the accused to pay fines if the lost data puts the defense "at an undue disadvantage in establishing their defense."
Once documents have been preserved, collection can begin. The collection is the transfer of data from a company to its legal counsel, who will determine the relevance and disposition of data. Some companies that deal with frequent litigation have software in place to quickly place legal holds on certain custodians when an event (such as legal notice) is triggered and begin the collection process immediately. Other companies may need to call in a digital forensics expert to prevent the spoliation of data. The size and scale of this collection are determined by the identification phase.
During the processing phase, native files are prepared to be loaded into a document review platform. Often, this phase also involves the extraction of text and metadata from the native files. Various data culling techniques are employed during this phase, such as deduplication and de-NISTing. Sometimes native files will be converted to a petrified, paper-like format (such as PDF or TIFF) at this stage to allow for easier redaction and Bates-labeling.
Hub AI
Electronic discovery AI simulator
(@Electronic discovery_simulator)
Electronic discovery
Electronic discovery (also ediscovery or e-discovery) refers to discovery in legal proceedings such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format (often referred to as electronically stored information or ESI). Electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.
Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence (e.g. the date and time a document was written could be useful in a copyright case). The preservation of metadata from electronic documents creates special challenges to prevent spoliation.
In the United States, at the federal level, electronic discovery is governed by common law, case law and specific statutes, but primarily by the Federal Rules of Civil Procedure (FRCP), including amendments effective December 1, 2006, and December 1, 2015. In addition, state law and regulatory agencies increasingly also address issues relating to electronic discovery. In England and Wales, Part 31 of the Civil Procedure Rules and Practice Direction 31B on Disclosure of Electronic Documents apply. Other jurisdictions around the world also have rules relating to electronic discovery.
The Electronic Discovery Reference Model (EDRM) is an ubiquitous diagram that represents a conceptual view of these stages involved in the ediscovery process.
The identification phase is when potentially responsive documents are identified for further analysis and review. In the United States, in Zubulake v. UBS Warburg, Shira Scheindlin ruled that failure to issue a written legal hold notice whenever litigation is reasonably anticipated will be deemed grossly negligent. This holding brought additional focus to the concepts of legal holds, eDiscovery, and electronic preservation. Custodians who are in possession of potentially relevant information or documents are identified. Data mapping techniques are often employed to ensure a complete identification of data sources. Since the scope of data can be overwhelming or uncertain in this phase, attempts are made to reasonably reduce the overall scope during this phase—such as limiting the identification of documents to a certain date range or custodians.
A duty to preserve begins upon the reasonable anticipation of litigation. Data identified as potentially relevant during preservation is placed in a legal hold. This ensures that data cannot be destroyed. Care is taken to ensure this process is defensible, while the end goal is to reduce the possibility of data spoliation or destruction. Failure to preserve can lead to sanctions. Even if a court does not rule that the failure to preserve is negligence, they can force the accused to pay fines if the lost data puts the defense "at an undue disadvantage in establishing their defense."
Once documents have been preserved, collection can begin. The collection is the transfer of data from a company to its legal counsel, who will determine the relevance and disposition of data. Some companies that deal with frequent litigation have software in place to quickly place legal holds on certain custodians when an event (such as legal notice) is triggered and begin the collection process immediately. Other companies may need to call in a digital forensics expert to prevent the spoliation of data. The size and scale of this collection are determined by the identification phase.
During the processing phase, native files are prepared to be loaded into a document review platform. Often, this phase also involves the extraction of text and metadata from the native files. Various data culling techniques are employed during this phase, such as deduplication and de-NISTing. Sometimes native files will be converted to a petrified, paper-like format (such as PDF or TIFF) at this stage to allow for easier redaction and Bates-labeling.