What Is eDiscovery? The Go-To Guide on Legal Electronic Information

Think of all your important files, photographs, and applications stored on your electronic device. 

Electronic devices commonly store and transfer information through various platforms such as emails, social media, and web applications. All this data transferred through electronic devices can act as evidence or documentation in a lawsuit or an investigation. 

Electronic discovery (eDiscovery) is one method of identifying, collecting, and producing electronically stored information (ESI) to be presented in court. eDiscovery software enables the review of electronic documents during litigation.

eDiscovery can be extremely complex, as there is a multitude of file types that can be used (like emails, voicemails, videos, websites, social media posts, and databases) and many rules governing legal uses.

Just as there are rules concerning the collection, preservation, and presentation of physical evidence, there are comparable rules for electronic documents. eDiscovery software is used throughout the process.

Electronic files must be preserved in a specific way to qualify for legal use. Metadata (information such as what’s in a file, when it was created, who created it, who received it, and other timestamped information relevant to the creation of the document itself) must be preserved to verify the document as original and unaltered. Being able to confirm a document’s veracity as an unaltered piece of content is vital to the document’s inclusion in a case. 

eDiscovery process 

eDiscovery software was originally used in a small portion of the process. But as technology became increasingly important in life and business, solutions began expanding to encompass the entire eDiscovery process.

The increase in the number of comprehensive solutions, and the legal system’s acceptance of electronic files as evidence, has led to a massive market. The eDiscovery software market is expected to be worth over $17 billion by 2023.

• Information Governance (IG): Used to describe the procedures, policies, and controls for data collection, IG is managed by the Information Governance Reference Model (IGRM), which provides a framework that agencies can follow. 
• Identification: Preserving evidence is vital to ensuring a successful trial. Teams work on the identification phase by interviewing key stakeholders, reviewing case facts, and analyzing digital evidence to understand which data to preserve. Once a file is identified as relevant to a case, a “legal hold” is placed on the file. The legal hold directs that the files cannot be deleted, destroyed, or changed in any way. Once the legal hold is placed on the files, those potentially relevant are identified by the eDiscovery software, removed, and placed in a database. 
• Preservation: After identifying the relevant data, owners preserve said data safely. The software scans the t-files and identifies and separates the relevant from the non-relevant. The relevant files are placed in a secure digital space. 
• Collection: Data collection takes place on various technologies depending on the requirements; however, the chosen application must follow a legal process. The digital evidence and data – such as the metadata, file size, dates, and audit logs – should not be compromised or altered. 
• Processing: Once the data is collected, it might be unorganized and cannot be presented to the attorneys in the court as it is. Processing the data, organizing it, and using automated eDiscovery software can help extract meaningful information and ensure relevancy. Certain documents are converted to a different file format, often a PDF, to allow redactions of privileged information. Redactions can also block irrelevant information from being viewed in an otherwise relevant file.
• Review: Reviewing and documenting the data before presenting it is critical. The review process is done manually or with the help of artificial intelligence. The documents that fall under client-attorney privilege are identified in this step. Paralegals and lawyers go through the documents. 
• Analysis: The digital assets and documents are organized and ready for presentation and analysis. Digital records that act as evidence during the litigation process are analyzed.  
• Production: Once the key evidence is analyzed, the attorney may turn the digital asset into physical documentation. This helps in the easy presentation during the court trial. They go through the document production process, which refers to the readying of files to be presented in court. They are governed by a separate set of directives regarding the production of electronic information. Once produced, the files can then be presented in a court of law.
• Presentation: The final evidence presented to the judges, jury, attorneys, deposition participants, and mediators is organized in an easy-to-read format. 

Importance of eDiscovery

The nine stages of the eDiscovery process may seem straightforward but sometimes take months or years to complete. eDiscovery is a tedious but extremely important process in today’s courtrooms. 

Tampering with digital evidence during any process may result in losing the lawsuit. Understanding the importance of the process and ensuring digital safety, and cutting off irrelevant access can ensure that important information is not compromised.

Entire rulings may come down to the content of emails sent by a corporate executive. More information than ever is stored electronically, and its admissibility in court can make or break a case for either the prosecution or the defense. The entire goal of the eDiscovery process is to compile a base of legally admissible, relevant documents on which both the prosecution and defense can build their case.

Lawyers are required in many states to be technologically competent, meaning they must have an in-depth understanding and working knowledge of eDiscovery. As the amount of ESI increases and more and more outcomes hinge on the inclusion or exclusion of electronic files, eDiscovery is also becoming increasingly important.

eDiscovery benefits

eDiscovery solutions provide law firms and legal departments with a host of benefits. They improve the eDiscovery process, making it more efficient, less costly, and more accurate when identifying relevant documents. Some of the common benefits of eDiscovery are as follows:

• Reduce discovery-related costs
• Improve discovery efficiency 
• Increase the accuracy of relevant document identification
• Leverage document tools for collaboration
• Increase accessibility 
• Effective collaboration opportunities 
• Better organization of digital data and documents 

Artificial intelligence (AI) and eDiscovery

In recent years, Artificial Intelligence has become a fundamental part of eDiscovery. Predictive coding-based AI applications parse massive data sets armed with knowledge about document relevance and apply that knowledge to suss out documents that are relevant to the case at hand.

In a nutshell, that’s how AI and eDiscovery are intertwined. There is a multitude of terms used when referring to AI in the context of eDiscovery. Predictive coding, technology-assisted review, AI, and machine learning all refer to the same thing: AI-driven eDiscovery.

Legal teams have some work to do to ensure that the AI pulls relevant documents. This is done by first inputting a “seed set”, which refers to a cross-section of documents from the entire set to be analyzed. The team tags relevant and irrelevant documents in the seed set and feeds that information to the application.

Based on those seed documents, the software produces an algorithm to parse that group of files. The algorithm then searches for additional documents, and the team reviews the results and tweaks the algorithm as needed to produce the desired result (i.e. the identification of all relevant documents in the data set).

Once that’s finished, the team has the software scan the remaining documents to identify relevant and irrelevant ones.

Future of eDiscovery

Large-scale adoption of digital collaboration tools such as video conferencing, platforms such as Zoom or Microsoft teams, and virtual meetings due to an increase in remote working has led to an increase in ESI, and the adoption of eDiscovery to a greater extent. Predictive coding and other supervised machine learning trends help find the responsiveness and relevance of ESI. 

eDiscovery is generally accepted as valid practice, and the eDiscovery market is expected to continue its rapid growth. When predictive coding (AI-assisted review) became prevalent, there was a good deal of interest as to how the courts would treat the new technology.

A ruling in 2012, da Silva Moore v. Publicis Groupe, set the precedent that predictive coding or AI-powered discovery and document review was a valid way to review documents. Subsequent rulings have upheld da Silva Moore, establishing predictive coding as the standard for document review.

eDiscovery, particularly AI-powered eDiscovery software, will continue to increase in prevalence for the foreseeable future.

The ruling is in favor of eDiscovery software!  

eDiscovery software is the present and the future of all things legal. It helps streamline the process, gather and compartmentalize files, and analyze the relevant digital assets. eDiscovery can be cost-effective and time-saving for law firms and various legal departments. 

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