Mention the term “eDiscovery” and the perception for many is simply the process of turning documents into an electronic form.
Discovery is the process whereby parties exchange information that is pertinent to the case. The discovery process remains an essential part of any litigation or investigation, although it can quickly become a time consuming and costly part of any matter.
eDiscovery (or electronic discovery) is simply an extension of the of the traditional discovery process by applying it to Electronically Stored Information (ESI).
The eDiscovery process is still the same as the discovery process was, or is. Just because we have added an “e” it doesn’t mean the obligations are any different. To improve the effectiveness of the discovery process, electronic means are now required to manage the electronic information.
So what has changed?
Today, nearly all information is created electronically. The increasing volumes and sources of electronic information can create significant challenges when managing the discovery process.
Gone are the days where discovery may have solely consisted of letters, faxes and later emails – albeit often in voluminous paper form.
In every walk of life technology has changed how we communicate, which has created a proliferation of data for the eDiscovery process. We are now faced with multiple sources that may contain potential evidence, like servers, laptops, accounting databases, mobile phones and the cloud, with more communicating through social media applications like Facebook, Twitter and Instant Messaging – and the list goes on!
To complicate issues further, this information can be located in different locations, multiple devices and with it comes multiple copies.
Every matter now involves an increasing amount of ESI. It is estimated that electronic data volumes are now doubling at least every two years. As technology and the methods of communicating continue to evolve so, too, will the potential challenges of the eDiscovery process.
Without much warning, eDiscovery exercises and the costs associated can quickly spiral out of control.
Removing traditional discovery practices
Much of the cost and burden of the discovery process can be attributed to a familiarity of replicating traditional paper-based practices. Many of these practices have become outdated and no longer effective in managing electronic information.
In the past the discovery process would require considerable manual work from lawyers collating and reviewing documents (including the unenviable task of putting stickers on paper documents to identify relevance). The documents would then be photocopied multiple times before and following discovery.
The process then developed with the scanning of the paper documents. This process effectively replicated the same process used with reviewing paper documents, but it was carried out on a computer screen instead of with paper.
Printing or scanning documents and then reviewing them will no longer cut it. These practices only add expense, burden and inaccuracy to the exercise. Thousands of dollars can easily and needlessly be wasted by producing images of documents and then manually listing those documents.
There are now simply better ways to conduct discovery.
How to successfully prepare for and manage eDiscovery
Preparation and planning is crucial to successfully managing the discovery process.
Those who invest more time at the outset of a matter in developing a discovery strategy will be better prepared to tackle eDiscovery. The strategy should assist you get to what you want, and do so quickly, cheaply and accurately. With the High Court discovery rules requiring proportionality and co-operation, it is now important to be more informed about your information at an earlier stage.
In a paper-based world, it may have been possible to have read every document, but now it is essential to devise methods that can help remove irrelevant information so the legal team can focus on reviewing the most important information, and do so at a much earlier stage. The technologies and practices available allow us to do this quicker, cheaper and more accurately than was ever possible with traditional practices.
It should be noted, that there is not a “one size fits all” approach when it comes to managing eDiscovery. The evolving nature of eDiscovery (and technology), makes it important to develop a strategy on each matter, as practices and software can quickly become outdated as more effective strategies develop.
Lawyers will have to come to grips with the practices and technologies to successfully manage the discovery process both proportionately and cost effectively.
Globally eDiscovery has become a multi-billion dollar industry, made up of technology and services to assist law firms with many of these challenges. When required, law firms might look to engage eDiscovery specialists to assist them with their eDiscovery obligations. The assistance will range from strategic advice through to effectively project managing the entire eDiscovery process.
Whether we call it “discovery” or “eDiscovery”, the process remains the same as it has always been. It is a process that has been complicated by proliferation of electronic information.
What has changed is how we prepare for and manage the discovery process. The challenges presented by today’s digital paradigm require greater investment at an earlier stage to plan the discovery process.
An effective eDiscovery process will help parties be more informed at an earlier stage, while preventing many of the unnecessary costs and the burden that can be associated with eDiscovery.
Andrew King is the founder and strategic advisor at E-Discovery Consulting (www.e-discovery.co.nz), where he manages the entire discovery process or provides independent advice on any aspect of it. Andrew can be contacted on 027 247 2011 or email@example.com.