E-discovery is a form of digital investigation that attempts to find evidence in email, business communications and other data that could be used in litigation or criminal proceedings. The traditional discovery process is standard during litigation, but e-discovery is specific to digital evidence. This evidence could include data from email accounts, instant messages, social profiles, online documents, databases, internal applications, digital images, website content and any other electronic information that could be used during civil and criminal litigation.
How Does E-Discovery Work?
Like any other form of investigation, electronic discovery is a process with several stages and techniques. There is no one-size-fits-all methodology. Most e-discovery law firms perform an investigation using their own procedures.
But most processes include a few common stages. These e-discovery stages were created to improve collection, preservation and presentation of potentially relevant information. E-discovery typically includes nine stages. Here’s how they work:
- Information governance (IG): IG is an umbrella term used to describe the procedures, controls and policies for data collection and preservation. Best practices are managed by the IGRM model, which provides a framework for all e-discovery agencies to follow.
- Identification: When litigation is imminent, all parties must attempt to preserve evidence. But how do you know what data to save? In the identification phase, a team determines what data must be preserved by interviewing key stakeholders, reviewing case facts and analysing the digital environment.
- Preservation: After data is identified, data owners are formally instructed to preserve data (and to not delete it).
- Collection: Several technologies exist to collect data, but the chosen application must follow a defined legal process. The team responsible for collecting data must ensure that digital assets are preserved without altering essential metadata such as file creation dates, size, and audit logs attached to each file.
- Processing: Raw collected data is usually unorganised and ill-suited to present to attorneys or the court. The processing phase of electronic discovery involves organising data and finding the right assets for analysis. This phase can also be automated using software to extract important information from a sea of irrelevant data.
- Review: Reviewing documentation and digital assets can be done manually or by using artificial intelligence. During the review stage, pertinent information is separated from unnecessary data that is not relevant for the ongoing litigation. This phase also identifies documents subject to client-attorney privilege.
- Analysis: At this stage in e-discovery, digital assets become more organised for presentation. Reviewers identify patterns and key information critical for litigation and design a presentation layout used during trial or deposition.
- Production: Digital assets must be turned into physical documentation. After key data is identified, attorneys turn it into presentable evidence.
- Presentation: Evidence in litigation must be presented to other attorneys, judges, juries, mediators, and deposition participants. During the final presentation phase, data is organised in a way that makes it easy to parse and then convey to an audience.
Why Is E-Discovery Important?
The nine stages of e-discovery seem simple on paper. But the process can take months, and it gets more complex during higher-profile lawsuits.
Attorneys handle the e-discovery phases, so you might wonder why you should care or be interested in the way it works. The answer: e-discovery is critical for your success during lawsuits. Tampering with digital evidence or poorly executing any of these stages during e-discovery could lead to losing the lawsuit.
Organisations must also understand the way e-discovery works so that they can preserve data when investigating inappropriate data access and privacy issues. An audit trail is required in many of the regulatory standards that oversee private data storage and processing.
An audit trail helps identify who accessed data and at what time. E-discovery would help determine whether any inappropriate data access was due to an insider threat or system compromise. If the system was compromised, then the organisation should consider investigating further to identify the vulnerability and contain the threats.
Why Do Some Organisations Struggle with E-Discovery?
E-discovery is often misunderstood, and often, doesn’t become important until a lawsuit is filed. Whether the organisation is the complainant or the defendant, the process of e-discovery is often new territory as they work through each stage. Even with in-house staff, investigating data privacy violations and digital compromise can difficult. Even if the organisation identifies an attacker, law enforcement needs proper evidence to file criminal charges.
Complicating matters, companies are often completely unprepared for the e-discovery process. It’s not an optional part of an investigation; all litigants must go through e-discovery procedures. Staying prepared, having the right controls in place, and keeping accurate audit trails are critical to identify and preserving relevant data.
Another issue is the sheer volume of data that must be collected. Organisations with large systems must know where data is stored and have access to retrieve it. This means that several people might be involved in finding and collecting data. It can take months to search large databases, and the right data must be made available to investigators in a timely manner.
And even if all data is identified, employees must be warned not to tamper or delete any of it. The team responsible for e-discovery will collect and preserve it. Still, it’s the responsibility of the entire organisation to keep it intact and unaltered until it can be moved to a safe storage location. Data might not be on the network; it could be on an employee’s smart phone or mobile device. In these cases, the device must be surrendered and kept safe until data can be extracted.
Finding E-Discovery Solutions
E-discovery a decade ago was a manual process. But new software tools give organisations an automated electronic discovery solution. Some of these solutions incorporate artificial intelligence to help with the identification and review stages of e-discovery.
The e-discovery solution you choose should be easy to use and should integrate well with your system. If it works in the cloud, be sure to select a solution that has the right security controls on all data. A data breach during e-discovery could devastate your investigation and disclose private data for employees, intellectual property and customers.
If software automation is not an option, the organisation must work with a law firm that will guide it through each stage. When choosing a solution, make sure that you find a law firm or a vendor experienced with digital analysis and electronic discovery, one that understands proper security controls to preserve data privacy.
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