E-Discovery continues to be a key topic of interest for records managers: it often reveals the frightening consequences of poor records management adoption by organizations. Companies can spend millions of dollars on this process or can be sanctioned a huge amount for spoliation if proper measures are not taken. But e-Discovery does not have to be daunting: it is just important to understand what's required and follow through.
This blog will outline what e-Discovery is with a seven-step breakdown showing how critical proper records management is to this process. Throughout, some helpful resources to learn more about this topic will also be shared!
What is e-Discovery?
E-Discovery, aka electronic discovery, is the process of collecting, preparing, reviewing and producing electronically stored information (ESI) in legal proceedings. The term E-Discovery was coined because ESI started to make up a big portion of the discovery process (and a big portion of the cost!), and its complexity is far greater than paper-based records. This is a natural progression since over 90% of records being created are in electronic form.
In the case of civil law, the discovery process takes place after:
- A complaint/petition is filed in court;
- A complaint/petition is served on a defendant; and finally,
- The defendant's response is filed in court.
After the defendant's response is filed in court, the complaint can either be dismissed or settled. After the discovery process, a trial takes place to review the information, followed by the court judgement.
7 Phases of E-Discovery and the Role of RM
The Electronic Discovery Reference Model was created by EDRM* and breaks the process down into seven steps:
A law suit has been filed and the lawyers involved require an organization to provide all information that is could be relevant to the case (for example: any information around a specific employee who is being sued). The first step is the act of identifying this information. Knowing where your content is stored and how to search through it efficiently simplifies this step.
Now that all potentially relevant information has been identified, it must be protected against being altered, moved, or deleted in order to maintain integrity of the records and organization providing them. To prevent any tampering, a legal hold should be placed on this information to secure it until the case is over.
Information in this hold has been gathered into a collection and is ready for the processing, review, and analysis portions.
This step is all about reducing the volume of information and, if necessary, converting the formats for the review and analysis portions. During processing, any irrelevant information or duplicates that were initially captured in the hold should be removed. This portion is easiest when using tools that allow you to save and filter your search queries (check out our blog on Legal Holds to learn more).
The document review portion of E-Discovery is when the legal team preforms an evaluation on relevance and privilege to begin developing their legal strategy around what to withhold and how to respond.
This step can be divided into two portions: content/metadata analysis and process analysis. These are conducted for assure relevance by looking at patterns, topics, discussions, etc., and to continue developing the legal strategy.
This is the final step before the information is presented as evidence to the courts. The ESI has been identified, reviewed, and analyzed so all that is left is to prepare and produce it all into a final, compliant, usable package.
As seen in the flowchart below (Figure 1), following the e-Discovery process correctly is one part of compliant Information Governance. From identification through to production, it is critical to have a solid RM program in place where those managing the records can properly identify, secure and share information relevant to the litigation case.
Figure 1: The EDRM Model (source image credits to EDRM)
While records managers are not meant to replace lawyers in this and they are certainly not expected to understand every aspect of the process, they do need to know how they can support the organization in the process.
The EDRM Talent Task Matrix clearly outlines who is doing what in the discovery project. Divided by the EDRM stage, the responsibilities are laid out by roles such as Attorney, Paralegal, Document/Data Analysis, Records Management, Information Technology and Review Quality Control Lead. Read the tasks assigned to records managers and consult related resources from the website:
EDRM Talent Task Matrix XLSX Spreadsheet (access here to download)
Another useful guideline on the EDRM is the EDRM Search Guide, version 1.17. Read Chapter 4 Search Framework to familiarize yourself with the search process.
Many positive changes are happening in the e-Discovery world. For example, the International Organization for Standardization (ISO) approved the development of an international standard for e-Discovery. Tools such as Collabspace, which helps narrow down discoverable content and streamlines steps of this process, are also gaining attention among organizations these days.
While there are a lot of components to e-Discovery, understanding requirements and being prepared with a solid RM program and tools will have your organization better equipped if it is ever necessary to follow this process.
Collabware provides both on-premise and cloud-based Records Management solutions with features to streamline e-Discovery and bring ROI to organizations during this process. Contact us or request a free trial to see if there is fit. To learn more about you can experience faster e-Discovery, read our blog about Legal Holds or download our FREE Collabspace brochure:
*EDRM is the leading resource on e-Discovery and information governance. The website publishes and consolidates reliable, well researched information from a variety of industry specialists. Records managers wishing to familiarize themselves with e-Discovery should consult EDRM.
This piece was originally written by Ellie Kim in 2013 and edited by Nadia Lepak in 2019 to update and include information on the seven steps.