E-discovery. The very word can mean salvation for lawyers who are tired of dredging through thousands of pages of hard copy documents during the lengthy, time-consuming discovery process.
But, e-discovery is not as simple as it seems.
Sanctions for e-discovery violations are steep, and attorneys now also have to work in conjunction with IT teams to produce the discovery and map out how to produce the electronic documents.
In the first few phases of gathering and preparing your e-discovery, there are three easy steps that you can keep in mind to smooth over the process.
Step One, Identify the Discovery: Of course, the first step to the discovery process will be to identify which files you need that are relevant to the litigation. When you identify which documents are relevant, take careful note because this can be an important step in the chain of custody needed to authenticate the documents. Also, once the files are identified, it will be important for the discovery and IT team to ensure that copying, tagging and identifying the files will preserve all the original data - such as the "last modified" date, which may be important in the litigation.
Step Two, Preservation of Files: Once you've identified the relevant files, you need to preserve the files so that the files don't get lost or deleted. And, you need to ensure that whatever records management system you are using will keep the files in its original condition, including the metadata. And, because the files are going to be used in litigation, the chain of custody is important. Make sure you use a deterministic, transparent, and trusted way to respond to any discovery requests. Including an audit log showing the access rights, parameters, and time stamps on files may be good to indicate the chain of custody.
Step Three, Collection: So now that you've identified and preserved the e-discovery, it's time to collect the data. There are many products out there can help find and collect files, like Google Desktop Search. But the problem is that you need to make sure whatever software you use has the right settings on it, otherwise the tools might change the metadata for the files you are looking for. In some cases, using simple software tools won't be enough to satisfy the court, and a full forensic collection of the files will have to take place.
So, the next time you're going through the e-discovery route, remember the three easy steps. And, remember that there are a lot of other resources out there that can help you navigate the e-discovery world.
- FindLaw's Interactive Guide to Electronic Discovery (FindLaw)
- Harvesting Electronic Discovery (FindLaw's Technologist)
- Potential Jail Time For Electronic Discovery Abuse and Spoliation of Evidence (FindLaw's Technologist)