In today’s digital age, the vast majority of information relevant to legal matters exists electronically – emails, documents, databases, mobile data, and more. eDiscovery, short for electronic discovery, refers to identifying, collecting, processing, reviewing, and producing this electronically stored information (ESI) for use as evidence in legal proceedings.

The eDiscovery process has become essential to virtually every litigation, investigation, and regulatory request. As data volumes continue to explode, legal teams must have a solid understanding of eDiscovery principles and best practices to manage their discovery obligations effectively.

The EDRM Lifecycle

The Electronic Discovery Reference Model (EDRM) provides a standardized framework, breaking down the eDiscovery process into nine phases:

  1. Information Governance – Implementing policies and workflows to manage the information lifecycle proactively
  2. Identification – Locating potential sources of relevant ESI like emails, documents, databases, mobile data, etc.
  3. Preservation – Ensuring identified ESI is protected against deletion, modification, or spoliation
  4. Collection – Transferring preserved ESI in a forensically-sound manner to a central repository
  5. Processing – Reducing data volumes through deduplication, date filtering, deNISTing, and other culling techniques
  6. Review – Evaluating ESI for relevance, privileged content, confidentiality through human review, technology-assisted review (TAR), etc.
  7. Analysis – Using advanced tools like email threading, conceptual analytics, and AI to cull data sets further
  8. Production – Delivering the relevant, non-privileged ESI to opposing parties in an agreed-upon format
  9. Presentation – Displaying key evidence persuasively at depositions, hearings, or trial

This model underscores how eDiscovery is a dynamic process that may require legal teams to cycle between phases as new insights emerge. This flexible approach enables them to continuously refine and optimize strategies based on the latest case developments and requirements.

The ability to move back and forth between stages as needs evolve helps improve the thoroughness, accuracy, and efficiency of efforts. It prevents wasting time or resources on irrelevant data while ensuring a comprehensive handling of pertinent information. In addition, the ongoing adaptability enhances the alignment between eDiscovery activities and the evolving legal strategy.

Starting eDiscovery Before Litigation

While the EDRM provides a comprehensive framework for managing ESI during litigation, the foundation of a successful eDiscovery process begins long before litigation is actually filed. Having robust information governance policies and procedures in place is critical to facilitate downstream eDiscovery activities when legal matters do arise.

Proactive information governance lays the groundwork by classifying data, establishing retention schedules, implementing legal holds, and more. It provides a systematic approach to managing the information lifecycle and ensures relevant data is preserved and accessible, if needed.

Organizations should also have plans and technology in place to quickly identify custodians and data sources if and when legal preservation obligations are triggered. Issuing legal hold notices, suspending data deletion protocols, and beginning targeted collections allows corporations to act swiftly when litigation is anticipated.

By getting ahead, corporations can control costs, reduce risk, and ensure they can meet their discovery obligations right from the beginning. The upfront investment in information governance and eDiscovery readiness pays dividends when the pressure is on to produce ESI promptly while withstanding scrutiny.

eDiscovery Software

The emphasis on early preparation underscores the need for robust eDiscovery tools capable of managing the complexities involved throughout the process. This is where dedicated eDiscovery software platforms come into play.

Designed to seamlessly integrate with the proactive measures discussed, these platforms enhance efficiency and compliance throughout the EDRM stages by leveraging advanced technological capabilities such as:

  • Serving as a central repository by consolidating all ESI into one secure and accessible location
  • Processing all types of electronically stored information in scope for the matter, such as email, efiles, chat platforms, cell phones, etc., in a way that is consistent and reproducible
  • Providing robust Early Case Assessment (ECA) tools to assist with the identification of relevant data
  • Providing enhanced searching capabilities that is easy for all end users to work with
  • Streamlining document review and analysis through advanced technologies, significantly reducing the need for manual effort and increasing accuracy
  • Facilitating seamless interactions and document sharing between internal teams and external counsel with enhanced collaboration tools
  • Providing comprehensive data security and compliance features, safeguarding sensitive information and ensuring adherence to legal and regulatory standards
  • Offering significant cost and time efficiencies by automating various eDiscovery tasks, optimizing the allocation of resources
  • Handling any government or court ordered specifications with advanced production tools

Who Needs eDiscovery?

While eDiscovery emerged to support litigation for law firms and corporate legal departments, the process of identifying, preserving, collecting, and analyzing ESI applies to any organization facing legal or regulatory compliance requirements, including:

  • Law Firms & Legal Service Providers
  • Corporate Legal Departments
  • Government Agencies & Regulators
  • Internal Investigation Teams
  • Compliance & Information Governance Functions
  • Risk Management & Audit Groups

Any organization involved in litigation, regulatory requests, internal investigations, or enforcing compliance policies will likely require robust eDiscovery capabilities. Even if a corporation’s legal matters are not frequent today, establishing sound information governance practices and being prepared is essential to control costs and mitigate risk down the road.

The Importance of eDiscovery?

Proper eDiscovery is more important than ever to comply with discovery obligations, build a defensible case strategy, and avoid sanctions or adverse rulings. The high volumes and complexity of ESI also makes the process a significant cost driver, highlighting the need for disciplined workflows and leveraging the latest technologies.

As regulatory environments evolve and data footprints expand across new channels, the importance of sound practices will only continue to grow. Corporate legal teams must make eDiscovery competency a top priority if they want to control costs, mitigate risk, and effectively navigate the eDiscovery process.

adams.ned

Ned Adams

Author

Share article:

Ned Adams is a Senior Director, Client Services. Throughout his 20 years at TCDI, he has worked on a diverse range of projects from small transactional to large, complex projects spanning 10+ years. Ned enjoys the long-term partnerships he has fostered with his clients and believes personal connections and responsiveness are the keys to success.  Learn more about Ned.