The Ultimate Guide to eDiscovery
From preservation plans to retention policies, there’s so much to consider throughout the eDiscovery process. Read our ultimate guide to eDiscovery to set yourself up for success.
Have an eDiscovery question? Our ultimate guide to eDiscovery has the answer. From “How do I efficiently search through enterprise information?” to “What even is eDiscovery?” there are many important things to know about the eDiscovery process. The good news is — we’re here to help! Whether you want to learn more about a specific part of the process or are just looking for a place to start, our ultimate guide to eDiscovery will tell you all you need to know.
Read straight through or check out our table of contents below to jump to the section that interests you.
What is eDiscovery?
Most are familiar with the term “Discovery,” or the process of gathering information and evidence relevant to a legal investigation. Traditionally, Discovery meant combing through piles of hard copy files to find the information needed, but the advent of technology completely changed this. What were once hard copy files turned into data stored on hard drives, then traditional email servers, and now pretty much everything is in the cloud. As the presence of data or electronically stored information (ESI) grew, the letter “e” was added to “discovery” to specify when ESI was included in the discovery process. Thus, eDiscovery was born.
Today, eDiscovery is the process of identifying, processing, and collecting ESI that serves as critical evidence to a legal or internal investigation. Now more than ever, the world depends on various electronics and cloud-based applications to store critical information. ESI could be anything from emails to audio files, documents, Slack messages, cell phone records, social media posts and more. As emerging applications become more complex, so does the data they produce, which in turn, leads legal teams to search for modernized eDiscovery solutions.
How is eDiscovery changing with advancements in technology?
It can be hard to keep up with the overwhelming amount of information our organizations are creating, but when it comes to eDiscovery, this is when it matters most. For this reason, it’s critical to have an eDiscovery tool in place that can secure and organize your data on an ongoing basis. We’ll get into how an eDiscovery solution can aid in the process in the next section of our ultimate eDiscovery guide.
How does it work?
The eDiscovery process is broken down into what’s known as the Electronic Discovery Reference Model or EDRM. The EDRM model breaks down the eDiscovery process into nine stages: information governance, identification, preservation, collection, processing, review, analysis, production, and presentation. It’s important to note that this model is meant to be a conceptual guide, not a literal one. It’s not uncommon for legal teams to repeat a step or circle back to previous steps, as the eDiscovery process can be unique to each case. We recommend employing eDiscovery software to make your EDRM process as smooth as possible.
Information governance (IG) is how an organization manages its information and makes it useful. Enterprise information is a valuable asset. Thus, it requires a high level of accountability and oversight to ensure the integrity of its data. The idea behind IG is to implement procedures that’ll keep your organization’s information preserved and organized in the event of compliance or litigation. In other words, information governance is what steps you have taken to be in control of your data.
Identification is the process of identifying what information is useful when litigation is underway. This typically involves pinning down custodians (key players), a list of keywords, time frames, and relationships between custodians. Having an eDiscovery tool that can search across your enterprise data at a very granular level will help streamline this step.
Once all relevant information has been identified, it’s important to safeguard that information from modification or destruction — this is where preservation comes in. Not only does preservation ensure that you have defensible evidence, but it also protects you from heavy legal sanctions and punishments. The most common form of preservation is placing custodians (owners of files) under “legal hold”, or restricting them from altering or destroying their data. This ensures that the sought-after information remains intact. In addition to legal hold, utilizing an eDiscovery tool that offers audit logs, auto-sync archiving, and file versioning, is the best way to ensure defensible copies of everything.
Once the right information is preserved, it is critical that it remains preserved — this is where collection comes into play. To be legally defensible, ESI must be forensically compliant and its contents should not be altered in any way. To ensure this happens, legal and IT teams should come up with procedures detailing how to properly collect and return data. Keep in mind, there is no one-size-fits-all plan and instructions can vary based on where data is housed, so choose the methods that work for your team.
Next, the collected information is processed so that it’s more suitable for legal review. To ensure the most thorough processing possible, it’s a good idea to employ an advanced eDiscovery tool. An advanced eDiscovery tool will be able to extract layers of metadata and perform OCR capabilities for richer indexing and classification. A good eDiscovery tool should also be able to delete unnecessary data and convert messy file formats into comprehensive documents. This will save you time in the review step, which in turn, will save you money.
Once relevant ESI is processed, it’s time to export it for review. This is usually the most expensive part of the process, however, if you employ an eDiscovery tool that does all of the amazing stuff previously mentioned, you’ll save a ton of money. In fact, eDiscovery platforms like Onna are able to simultaneously process and export ESI directly into a review platform of your choice. However, if you still seek out an attorney for review, you’ll be able to save a ton of money by only giving them exactly what matters for your case rather than a massive data set.
During analysis, key trends and discussion topics are searched for to gain better context into the investigation at hand. Analysis helps lawyers develop the story behind their case, and provides supporting content. Although analysis is the seventh stage in the EDRM process, it’s often used in multiple stages of eDiscovery, so don’t feel like you’re doing it wrong if you find yourself constantly analyzing throughout the process.
Production is simply turning relevant information into presentable evidence. Although there are many best practices for production based on who you ask, a general rule of thumb is that evidence should be presented in its native format or as close to its native format as possible. Beware of eDiscovery tools that claim to export screenshots instead of the real deal — this could cost you when it comes time to show defensible copies of everything.
Congrats! You’ve made it to the final stage of EDRM — presentation. This post-discovery stage is how information is displayed or presented for the purpose of a trial. Often times, such evidence is presented at depositions or hearings as well. This is where all of your work throughout EDRM finally comes together, making this the most pivotal point for your case.
eDiscovery laws you need to know
The Federal Rules of Civil Procedure Rule 1 was created to safely guard the “just, speedy, and inexpensive determination of every action and proceeding.” It is the mother of all eDiscovery rules because it claims the simple, straight-forward purpose of governing all civil case procedures.
Rule 26 establishes the standard that counsel must follow when providing information. Discovery requests should be reasonable and proportional to the matter.
The purpose of Rule 34 is to keep disputes from occurring. It requires attorneys to request for production in a timely manner.
Rule 37 limits sanctions imposed upon a party if and only if the court finds that there has been an “intent to deprive another party” of any kind of requested information.
What is GDPR and how is it related to eDiscovery?
GDPR, or General Data Protection Regulation, is exactly what it sounds like — laws to help protect consumer data. Let’s face it, data is the center of our lives. Whether we’re online shopping, perusing social media, or taking a trip to the bank, we’re constantly sharing our personal information. From names and photos to email and IP addresses, the data that organizations collect from us is overwhelming. GDPR was created to help people take back control of their data by allowing individuals to request that companies erase all of their information. GDPR also holds organizations accountable with hefty penalties if ever there’s misuse or exploitation of consumer data.
Right now, GDPR is only in effect in the EU under their digital privacy legislation. However, EU citizens interact with organizations all over the world. Therefore, all companies that work with citizens from the EU or plan to do so in the future must know how to be GDPR compliant. So in the case of eDiscovery, if someone asks for their information to be removed from a company’s database, you must a) show record of what you’ve done with it and b) be able to find it. Also, in the event of a data breach, you’ll be legally obligated to notify everyone affected, which is difficult to do unless you are actively preserving and archiving information. For this reason, employing an eDiscovery software is a must — it’s better to be safe than sorry.
How Onna helps
Now that you’ve made it to the end of our ultimate guide to eDiscovery, you’re probably wondering, “Where can I get an eDiscovery tool to help streamline this process?” Good news! Onna can help. Here’s a brief overview of how it works:
Onna acts as a central access point to all of your ESI by connecting your applications in one easy-to-use platform. Onna’s open-ended Application Programming Interface (API) allows you to integrate your applications directly with the platform. Whether you want a full archive of your data or a targeted subset, we extract everything you need in its truest form, so you’ll never have to second guess defensibility. Onna’s advanced processing engine then allows you to search across all of your information at once, and find exactly what you need in seconds. You can get as granular as you’d like by searching for keywords, users, file types and more. By simultaneously extracting and processing data and running search across multiple applications in one place, Onna cuts the steps of the traditional eDiscovery process in half, thus saving legal teams both time and money.