I have been contemplating what defines eDiscovery for some time now. On the face of it, the topic seems quite straightforward. However, as I scratched beneath the surface, I discovered it to be more nuanced, mainly depending on whom you are speaking to.
An example best illustrates this:
If I talk eDiscovery to a legal person, they will quite likely understand it to mean the preservation, collection, processing, reviewing and presentation of Electronically Stored Information (“ESI”). In this way, eDiscovery enables us to exchange relevant non-privileged documents with a requesting party for potential use in litigation. Comprehensive, if quite a mouthful! However, a technical person running an email system or Cloud archive may define eDiscovery as the ability to search, identify and export information for multiple purposes, one of which could be litigation.
I would dare to venture that both views are equally valid (I can feel the legal hackles rising already).
Granted that the legal definition is more comprehensive and more accurate to the original legal term of Discovery, the disclosure of evidence on which you intend to rely at trial. However, in my interactions with corporate legal teams, industry IT specialists and software vendors, you often hear the term eDiscovery rolling off their tongues.
For example, “Our archive has an eDiscovery portal”, or “I will quickly perform an eDiscovery within our email system”.
What they actually mean is that they can search and extract information, sometimes in a defensible and forensically sound manner, to feed a downstream review or compliance activity.
Effectively, their focus is the left-hand side of the Electronic Discovery Reference Model (“EDRM”): information governance, identification, preservation and collection.
In short, I am saying that eDiscovery may mean different things depending on whom you’re dealing with, closely aligned to their needs, function in the business and role they play across the EDRM spectrum.
There is a significant difference between performing an eDiscovery exercise for potential litigation including matters of privilege, utilising a full-blown eDiscovery platform with analytics, review and production capabilities and extracting email from mailbox via an “eDiscovery Portal” for internal disciplinary action.
Yet both achieve their desired result and are both are often referred to as eDiscovery.
So why is eDiscovery important?
There are several drivers, but I would suggest that the following are the primary two:
- The ever-more stringent regulatory frameworks in which many industries now have to operate.
- The sheer volume of ESI that companies now have to deal with, including new formats such as audio, video and social media.
Being able to respond quickly and cost-effectively to data subject access requests (under GDPR and other rights of access regulations), potential litigation, regulatory enquiries or data breaches all require that you have a good handle on where corporate information resides, how it is maintained, who has access to it and how retrievable it is.
An understanding of the eDiscovery process as defined by the EDRM model gives excellent guidance on the various phases of the eDiscovery process.
DIAGRAM of EDRM Model?
An often overlooked aspect of the EDRM model is the Information Governance portion. Yet this is where it all begins, and with proper upfront information governance, all the remaining stages of the eDiscovery process can be executed more effectively. Knowing where to find custodian ESI and how it is managed within your organisation can reduce the risk of spoliation, expedite legal holds and preservation activities and prevent the over-collection of ESI that may bloat the eDiscovery process downstream.
Having a “map” of the data landscape and the information governance policies (including data retention and data classification policies) will give insight on:
- IT systems storing potentially relevant information
- BYOD policies and removable media policies
- Onsite, offsite and paper document storage locations
- Backup, retention, disposal and archiving policies
- Type of documents store (file types, formats, and size)
- Structured vs unstructured information available
- Classification of documents
- Security and access controls
- Data access and approval protocols
- Audit trail capabilities
- 3rd party providers and Cloud storage
Effective information governance can be referred to as “Discovery Risk Mitigation” as it ensures a solid foundation allowing you to move away from tactical to a more strategic response, if and when litigation occurs.
In summary, eDiscovery means different things to different people. Be sure that you are speaking the same language when engaging. An understanding of the eDiscovery process (EDRM) is essential, and it will help reduce risk and improve your effectiveness in the face of potential litigation, especially a compelling and well-documented information governance policy, strategy and response plan.