The discovery process in litigation requires that parties must exchange documents deemed relevant to the case. As most documentation is now created, stored and exchanged in digital form, this element of discovery has become known as electronic discovery – or eDiscovery – and has become an accepted part of legal systems worldwide. Today, the process of preserving, collecting, locating, searching, reviewing, analyzing and acting on electronically stored information (ESI) involved in eDiscovery is applicable to a broader range of business use cases beyond civil litigation.
What is exactly is eDiscovery, how does the best eDiscovery software benefit your organization and what are growing business use cases for eDiscovery software?
What is eDiscovery?
Any legal professional practicing civil litigation in North America is familiar with the discovery process where parties are required to exchange documents that may be relevant or responsive to the matter at hand.
What has emerged over the last 15 to 20 years is the concept of eDiscovery. The “e” in eDiscovery simply denotes that the vast majority – if not all – of the documents exchanged by parties and their counsel now originate and are stored in electronic format (usually called ESI) rather than as paper documents.
Perhaps 20 years ago, dealing with the amount of digital information within an organization could be manageably handled manually. This is no longer true in the world of Big Data. ESI includes emails, documents, presentations, databases, enterprise applications, voicemail, audio and video files, social media, the web and, increasingly, chat and collaborative platforms to name just some of the data sources.
Paper-based discovery is known to be costly, time-consuming and resource heavy but dealing with digital information adds significant layers of complexity on top of this. The result is that eDiscovery can actually require more time and more budget.
Why is this? When discussing big data, experts often talk about the volume, velocity, variety and veracity of the information. When undertaking eDiscovery, you need to take into account:
ESI makes it simple to create multiple versions of the same document. Most organizations quickly find themselves with multiple versions of documents stored in various different locations within the organization, and, sometimes, outside the organization with contractors, suppliers and customers.
There is an exploding number of channels that every company works with today. This is not just corporate systems and databases. It encompasses email, mobile, web and increasingly social media channels. The COVID-19 pandemic saw an increased use of chat and collaboration platforms. This means that a massive amount of new ESI is being created every day.
When it comes to the variety of ESI, there are two challenges: First, each individual piece of information is in the format of the system or application where it was created. So, part of the eDiscovery process will involve bringing all these different types of potentially relevant ESI together into a single application. Secondly, data and documents are quickly and easily edited, amended, moved and updated which can add many variants of the ‘same’ document that need to be identified, retrieved and reviewed.
With so much ESI spread across so many systems and channels, it’s easy for bad or inaccurate data to appear. Modern documents often contain vast quantities of metadata – such as the date the file was created, the author, transmission history, editing history, etc. – which help establish the accuracy and relevance of the document but add to the process of identification and review. In addition, it is very easy to delete or spoliate ESI, which can draw heavy penalties, but this doesn’t necessarily mean the original data is not still on the hard drive. Finding the truth within deleted or spoliated data is often still possible – if costly and time consuming.
Although it is theoretically possible to use a manual eDiscovery process, when faced with potentially Terabytes of data in any number formats stored in any number of internal and external systems it is simply not practical or desirable. Specialized eDiscovery software and processes are required to ensure that the time and costs of eDiscovery are not disproportionate to the importance and value of the matter being litigated.
These eDiscovery solutions strip time and complexity from the process, making it incredibly quick and easy to find, organize, hold, review and produce the relevant information wherever it’s stored.
eDiscovery runs from the time a lawsuit is foreseeable to when digital evidence is presented in court. The processes and workflows around eDiscovery are often complex because of the huge volume and variety of digital information to be identified, stored and produced.
As data types increase, ESI becomes increasingly dynamic. Preserving the original content and metadata is required in order to eliminate claims of spoliation or tampering with evidence later in the litigation. In addition, irrelevant information must be removed and privileged, confidential and personal information (pursuant to data privacy rules) be protected or redacted prior to production.
eDiscovery software enables organizations to pull information and records from the massive volumes of content that span the enterprise, including emails, chat, content management systems and more, and eliminate non-relevant data to reduce the effort and cost of reviewing the remaining content. The best eDiscovery tools automate and accelerate common discovery steps, reducing the manual work and fees involved in the process and increasing the accuracy and quality of the process (lowering the risk of overlooking critical data or inadvertently producing confidential or privileged data).
It should be clear that eDiscovery is not a single action but a series of inter-related workflows. However, the first generation of eDiscovery software was, in reality, a series of point solutions designed to address one specific aspect of the EDRM framework. This led in many cases to a patchwork of overlapping solutions and information siloes.
What is end-to-end eDiscovery?
Today it’s possible to manage the entire eDiscovery process end-to-end from a single eDiscovery platform. The best end-to-end eDiscovery platforms offer a centralized, fully integrated, unified system that delivers technology, workflows and expertise to support all phases of the eDiscovery process, from data collection and processing to analysis, review and production. They ensure control, flexibility, scalability and data security at all stages.
Core to the end-to-end eDiscovery platform is advanced AI and machine learning technology that is able to handle vast amounts of information and simplify the review process by leveraging technology-assisted review (TAR) based on the continuous active learning (CAL) protocol to intelligently surface only the document and information that are most likely to be relevant to improve the speed and quality of review while dramatically reducing the cost.
Sophisticated TAR technology can create an easy-to-understand ‘yield curve’ to demonstrate the defensibility of the process – that is that the majority of the relevant documents have been located and that further review would not be proportionate to the matter.
In recent years, cloud-based eDiscovery platforms have become increasingly popular, making it possible to upload, review, and produce information using a cloud-based solution that does not require the capital or operational expenditures associated with on-premises software solutions. The result is often lower costs and greater scale and speed. However, many legal teams and law firms either prefer or have regulatory requirements for on-premise capabilities. The best end-to-end eDiscovery platforms allow organizations to choose the cloud, on-premise, hybrid or on-demand configuration that best suits their business needs.
The benefits of eDiscovery software
eDiscovery has become an indispensable part of both the litigation and investigation processes for many organizations. Key benefits of using an end-to-end eDiscovery platform include:
Manage the entire eDiscovery process
Replace time consuming, error prone and costly manual process with fully automated and intelligent workflows. This enables legal teams to manage vast amounts of data while surfacing more relevant information quickly and improving the collation and review processes. Subject matter experts are now freed from the laborious information gathering and initial document review activities to focus on higher value analysis and negotiation elements of their role.
Lower the total cost of discovery
By harnessing the power of advanced AI and machine learning, eDiscovery tools reduce review costs by quickly eliminating duplicate and non-relevant documents.
Accelerate time to results
Streamline workflows for rapid access to potentially relevant data, allowing review teams and investigators to find the facts faster, make faster decisions, determine case strategy and meet often stringent deadlines – whether imposed by a court, a regulator or agreed to with opposing counsel.
Protect and secure sensitive data
Protect privileged and confidential information with multifaceted defense at the infrastructure, application and network layers. The best end-to-end eDiscovery solutions deliver in-platform data protection and security features and avoid data loss with cloud-based data backup and preservation. The platform provides a constant audit trail to guard against spoliation and lost information. Further, RegEx pattern detection can identify and secure sensitive personal information in compliance with data privacy laws.
Harness the economics and scalability of the cloud
Conduct end-to-end eDiscovery processes in the cloud to ensure availability and scalability while eliminating infrastructure costs and reducing in-house personnel support of time-intensive tasks.
eDiscovery: A growing range of business use cases
The software and processes involved in eDiscovery are becoming increasingly transferrable as greater data management and control is required in many facets of business.
For instance, internal investigations share many of the characteristics of litigation when it comes to the collection and review of ESI. To over-simplify, eDiscovery is the collation and sharing of ESI during the civil litigation process. Investigations can be seen as the review and analysis of ESI in order to establish facts relating to a matter that may never come to litigation or are completely unrelated to the litigation process.
Investigation is a rapidly increasing area for almost every business and affects almost every line of business. There are three main strands of investigation within a modern business:
This is a very wide-ranging category of investigations that covers cybersecurity, IP theft, fraud, insider threats and HR and employee matters, to list only a few.
Regulatory and compliance
Organizations must be responsive to the ever growing and evolving government, quasi-government and industry regulatory environment. In addition, data protection and data privacy are growing areas with legislation such as GDPR and CCPA specifically related to Subject Rights Requests (SRRs), including DSARs, as well as the need to respond effectively to Freedom of Information (FOI) requests – both which require workflows that closely resemble eDiscovery review workflows.
The investigations in this category can range from pre-mergers and acquisitions to C-suite vetting to third party contract management.
Modern ESI investigations are critically important and intensely demanding, but shrinking timelines and ESI data proliferation make it increasingly difficult for investigation teams to zero in on the key facts that will reveal the true story. The latest generation of eDiscovery solutions is easily adapted to meet the needs of even the most exacting investigation.
Why do you need an eDiscovery solution?
Why is eDiscovery important to a company? Put succinctly, competency in eDiscovery is now a necessity of modern civil litigation practice. It is virtually impossible to achieve manually, especially where cost and time are major factors. The only way to effectively meet professional and legal obligations in an increasingly digitally complex world is through an advanced, AI-driven end-to-end eDiscovery platform. It’s not just that it is more efficient and cost-effective to leverage technology. In civil litigation matters, courts may impose fines and/or sanctions if an organization and its counsel can’t effectively manage and produce its data.
OpenText™ is one of the only providers of end-to-end eDiscovery solutions that deliver a blend of technology platforms, process and services to meet the needs of legal and investigation teams worldwide. Find out more.