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For those new to the field of law or developing their knowledge of the latest legal practice methods, having a robust understanding of eDiscovery basics is an absolute must.
In this article, we will take a virtual tour through eDiscovery in terms of why and how it is used to streamline the legal case management process.
What is meant by ‘Discovery’?
Discovery (also referred to as Disclosure) is the process of offering up documents which are material to a particular legal case. According to the Civil Procedure Rules (CPR), part 31, rule 31.6, ‘Standard Disclosure’ requires a party to disclose only:
(a) the documents on which he relies; and
(b) the documents which –
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose by a relevant practice direction.
The emergence of eDiscovery
In a world of paper, pre-digitisation, there was little choice but to manually review and prepare; an undoubtedly onerous and costly task, and one that potentially led to important details being missed especially where the volume of documents was high, and the time to review them minimal.
With the advent of digital technology, new ways were conceived to undertake the manually intensive process of disclosure; one such example being the scanning of paper documents and use of optical character recognition (OCR) to digitise the content, enabling quick and easy searches for key search words or terms. At the same time, the burgeoning use of digital technology provided new challenges when gathering information pertinent to legal cases. Enter the concept of Electronic Discovery / Disclosure, or “eDiscovery”; the process of identifying, securing, and reviewing Electronically Stored Information (ESI).
Disclosure Pilot for the Business and Property Courts
There has been a sustained effort in recent years to drive down legal costs. In 2013, the Jackson Reforms endeavoured to increase the overall efficiency of bringing litigation and, therefore, reduce costs, however despite these changes, discovery was still deemed over burdensome and not fit for purpose.
More recently, acknowledging wholesale changes were necessary to embrace eDiscovery, in July 2018, the CPR committee approval to launch a two-year Disclosure Pilot scheme for cases proceeding in the Business and Property Courts in England and Wales, to deal with the excessive costs, scale, and complexity of discovery. This is due to get underway in January 2019. Under the Pilot, there will be a greater emphasis on eDiscovery, in addition to a number of changes. Firstly, there will be the concept of initial disclosure, a deliberately non-onerous process – which may obviate the need for further disclosure. The ‘Disclosure Review Document’ (DRD) which will list the issues for disclosure, change proposals for extended disclosure, and agree how documents will be shared. In addition, there will be five extended models of disclosure (A to E) – prescribed ways in which discovery should be conducted based on the case requirements.
While the pilot is only in its infancy, the desire to prescribe how discovery and eDiscovery will be carried out in a more efficient manner and therefore to reduce costs is driving changes in law practice.
The Electronic Discovery Reference Model
The EDRM is a standards-based framework for the recovery and discovery of digital data. The need for the EDRM becomes clear when you consider the sheer volume of data, and the number of devices which now store data which may be material to a court case. Without a structured approach, it would be impossible to ensure consistency in eDiscovery across all cases. The model doesn’t impose a linear methodology for how eDiscovery is conducted, rather it provides several suggested stages which can be completed as required, as follows:
* Information Governance – Information Governance is about how the organisation will create, use, retain, archive, hold, discover, and dispose of electronically stored information. This then enables the use of eDiscovery methods should they be required.
* Identification – Once e-Discovery is underway, it is first necessary to find all potential sources of electronically stored information (ESI) and to determine its scope, breadth and depth.
* Preservation – ESI must be kept in its original state, and not altered or removed. This is a vital requirement for e-Discovery, to ensure evidence is legally defensible.
* Collection – EDI must then be collected for the next stages of the EDRM process – with care being taken to protect the privacy and security of the information during the transfer process.
* Processing – Once received, ESI must be reduced and distilled ready for review and analysis. * Review – ESI is then reviewed in terms of its relevance to the case.
* Analysis – The analysis stage can be extremely time consuming, as it requires the e-Discovery team to make sense of the ESI provided – such as finding patterns, sequences of interaction between parties, pertinent topics etc.
* Production – Not only will parties need to carry out e-Discovery processes on data received from others, they will need to ensure ESI is provided to other parties in the appropriate manner.
* Presentation – The culmination of the e-Discovery process is summarising the pertinent outcome of the process in the form of reports or presentations for the intended audience. As such it might be necessary to provide evidence which confirms a stated position or is designed to persuade the audience of a sequence of events.
Where ESI might reside
It is no exaggeration to say that ESI is all around us. The Internet of Things (IoT), means that many items of technology are now connected to the internet, and as such, results in more data being stored. The traditional sources of ESI include electronic documents (emails, word processor documents, and spreadsheets), in addition to video, photos, audio, and databases. But much information is now held in places never conceived of including: mobile phones, social media accounts, tablets, drones; even fridge freezers and vending machines. Any item which retains a log or memory of activities, could, in theory, be used to gather important evidence.
There is little doubt that the practice of eDiscovery is only going to mature and evolve as new sources of ESI come into common use and provide material evidence in legal cases. What will happen if data that is captured in the home (perhaps through a cloud connected device such as Siri, or Amazon Alexa), but is stored in a data centre in an overseas jurisdiction? Such problems and many more will need to be solved by a new wave of specialists in eDiscovery. And what will be the impact of artificial intelligence, and new concepts such as Blockchain? Only time will tell, but one thing is clear – the future of eDiscovery is an exciting one.
Lineal is a global leader in providing eDiscovery support. To find out more about our eDiscovery services, please call us on +44 (0)20 7940 4799 or email firstname.lastname@example.org.