eDiscovery, sometimes spelled as e-discovery or ediscovery, is part of the process that helps lawyers and their clients find relevant electronically stored information for legal proceedings. It can be used in both civil and criminal cases and helps ensure that all pertinent evidence is uncovered.
There are several stages to eDiscovery, and each will be explained in detail in this article. The aim is to help you understand why this process is so important and how it can benefit your case.
What Are the Stages of eDiscovery?
The eDiscovery process consists of obtaining, preserving, and exchanging evidence in a legal case or investigation. In the context of litigation, the eDiscovery process goes through nine stages, as represented in the Electronic Discovery Reference Model or EDRM that we are going to go over.
Information Governance
In the first stage of eDiscovery, it’s necessary to identify, collect, and preserve electronically stored information relevant to a legal matter. But before proceeding with the initial step that’s meant to identify what ESI is relevant to that particular request, organizations must ensure their processes are in line with information governance.
Information governance is the guiding strategy for handling the information that will be part of each legal case. These underlying principles also define that ESI must be collected and preserved in a way that will ensure its integrity and authenticity.
Identification
The following stage of eDiscovery is known as identification. This part of eDiscovery refers to the process where lawyers and their clients work together to identify which documents and other forms of evidence will be relevant to the case.
Preservation
With the information that needs to be saved being identified, the lawyers are instructed how best to keep this data. Therefore, attention should be paid to preservation, or the act of ensuring that no ESI is lost or destroyed. This can be done by taking measures to prevent deletion or alteration of data and by creating backups or copies of data.
Collection
The following stage, known as collection, is when the evidence is actually gathered and compiled. A variety of methods can be used, such as document production, subpoenas, or interviews. Once the evidence has been collected, it will be reviewed to ensure that it is admissible in court.
Processing
This is where the gathered data is sorted and organized so that it can be reviewed more efficiently. It can involve removing duplicate data, converting data to a common format, and extracting metadata. It’s a perfect example of when eDiscovery becomes time-consuming, but it is indispensable as it ensures that the evidence is properly presented later on.
Review
The next stage is when the evidence is reviewed by lawyers and their clients. This stage can be extremely important due to allowing both sides to go through the evidence and determine how it will be used in court.
Analysis
The analysis phase comprises the evaluation of the electronic documents that were discovered to determine what the most significant ones are. This can be done manually or using software tools. Analysis typically involves looking for specific keywords or patterns and identifying the most relevant data.
Production
As part of this step, the collected data is physically made available to the participants of a legal process. A variety of methods can be used in this stage, such as depositions, exhibits, or trial testimony.
Presentation
Presentation is the final stage of eDiscovery based on the EDRM model. This is when the data is presented to the court and the opposing side.
Why Is eDiscovery Important?
When examining the role of eDiscovery in legal procedures today, we can observe that more electronic records are being presented as evidence in court than ever before. This abundance of electronic data that needs to be sorted, analyzed, and presented to the court can be taxing on the legal team.
It requires a lot of working hours, going through all the records, and identifying the material pertinent to the case. But emails, text messages, and Facebook messages all serve as evidence in a court of law and could easily bolster the winning argument for either side.
Why Is eDiscovery Such a Challenge for Lawyers?
Discovery used to be a process that was operated manually but nowadays, it requires both manual efforts and using software tools for data analysis. There is still not that much discussion of eDiscovery in law schools, so lawyers don’t always have the skills to tackle such a complex process.
Using eDiscovery tools also means that the legal team will be expected to cooperate closely with experts from the IT field. Even though it might seem as though that’s beyond the usual scope of legal practice, eDiscovery services have become a specialized branch of legal practice and a genuine career choice for some lawyers.
The Difference Between eDiscovery and Digital Forensics
Although these terms are often used interchangeably, as both analyze different types of electronic records and then prepare and present them for use in court, there is a significant difference between digital forensics and eDiscovery.
The main difference is that eDiscovery serves to collect evidence for use in legal proceedings, while digital forensics is used to investigate crimes. Both processes involve the analysis of ESI, but the objectives are different. Whereas eDiscovery is typically used in civil cases, digital forensics is used in criminal cases.
Moreover, in digital forensics, a forensic expert analyzes digital data and presents it to the legal team or the court. With eDiscovery forensics, the legal team engages in identification of the materials pertinent to the case with the aid of specialized eDiscovery software. Then the team prepares and presents those findings to the court and the opposing side.
Bottom Line
In this article, we looked at the eDiscovery processes used to obtain and present electronic documents in a court of law. eDiscovery plays a number of roles in the criminal justice system. It can be used to collect evidence, analyze data, and present information before the court. As such, it’s a key tool for diverse types of court cases, and it is important to gain a firm grasp of how it works so that it can be used effectively.
