The legal industry first recognized electronic discovery (eDiscovery) in 2004, after the famous Zubulake decisions. The plaintiff, Laura Zubulake, filed suit against her former employer UBS Warburg, alleging gender discrimination. SDNY Judge Sheindlin’s rulings set the tone of what would soon follow with the amendment of the Federal Rules of Civil Procedure in 2006.
Federal Rule 34 (a) (1) (A) defines eDiscovery as “any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained … directly.” Since then, lawyers have been struggling with an entirely foreign world, feeling they needed to turn into geeks overnight just to keep up with the lingo, and the technical requirements. eDiscovery can be scary, especially when savvy litigators and various government agencies are extremely aggressive in taking control of discussions when making demands regarding electronically stored information (ESI). Many feel that eDiscovery is like opening Pandora’s Box. They don’t know what’s in it, how much is in it, and how expensive it will be.
It’s a fact, eDiscovery isn’t going away. More and more information is being stored electronically and all of us need to be able to talk-the-talk and walk-the-walk at a fundamental level to be able to litigate effectively.
The Electronic Discovery Reference Model (EDRM) defines how electronic information is managed from the
inception to the resolution of the discovery phase.
By using computer assisted processes, and specific workflows, the goal of the EDRM is to reduce the amount of data the legal team must review before producing.
You should understand these three key phases:
- Document preservation and collection: By definition, a legal hold is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated. Work with your client to understand the scope of potentially responsive data.
- Data processing and review: Once the data has been identified, and securely collected, the next step is to ingest it and load it to a review platform. Every document electronically created leaves a trace. The ingestion phase (processing) consists of analyzing the documents’ genome (metadata), by applying culling criteria (deduplication, date filters, keywords), in order to discard the junk, and only keep the worthy data for review.
- Production: what the legal team has reviewed and deemed responsive, and not privileged, will be produced to the other side, usually in electronic format.
If you are unsure of a term, the Sedona Conference glossary is easily accessible at the following link.
Naturally, the questions of volume, cost and headcount will be paramount to the success of the entire process. In that regard, the role of the service provider is not only to assist with the technical aspects, but also to offer guidance every step of the way.
No question is a stupid question! Don’t guess what you don’t know. At the end of the day, what makes or breaks a case is partnership and collaboration between the client, law firm, and service provider to achieve top results.