10 Critical Decisions for Successful E-discovery Part 1
In Part 1 of this article, we will highlight 10 Critical Decisions for Successful E-discovery.
First, what is e-discovery? E-Discovery refers to the collection and review of documents and data in response to a request or as part of a successful lawsuit. The process is often used in legal proceedings such as civil lawsuits or other disputes where the information contained on electronic media may be relevant. Understanding key terms related to e-Discovery and working with an experienced team can help you avoid costly mistakes that could result from rushing through your case without due consideration for all possible outcomes.
There are a number of terms that you may encounter that require further explanation:
Content: This is the information contained in files and documents, such as e-mails, documents, and other media.
Data: This term refers to specific pieces of metadata, such as content. It sometimes includes information about a file's creation time and size. For example, the name of a file, the size of an image or document, the time at which it was created or modified or simply "created," is data. Metadata is data that helps tell something about the files' or documents' content, but also everything around them like who sent them and when they were received.
Data in context: This term refers to data that is related to the content but not necessarily part of it. It is important to evaluate each file before you determine what, if any, other files are associated with it. For example, the name of an individual who sent an e-mail message could be considered "data in context," as well as other information about the sender such as their phone number or address.
Data sources: These are places data can be found on your computer systems and other digital storage devices – from active databases used by your company's servers to backup tapes and archive files stored offsite.
Data custodians: These are individuals who have control over the data sources or who have access to them. They can be human or automated, and they have the ability to access, review, modify, delete and organize the data.
Document: This is a file that has been created with a file type such as word processing program, spreadsheet program or photo editing software. The documents can be in any format including PDFs and video files. Related data may also include metadata such as images, audio clips, metadata tags (such as metadata associated with keyword tags), sender information and comments associated with the document.
E-Discovery companies: These are highly specialized firms that specialize in managing e-Discovery activities for their clients by searching through computer systems for relevant data and reviewing them for legal relevance. The term e-Discovery also refers to E-Discovery software and services.
E-mail: This refers to messages sent from one electronic device to another. It is comprised of two parts – the body of the message and the "envelope" that includes information like who sent it, when it was sent, and how large it is. It may also include attachments, including photos or documents.
E-mail custodian: This refers to employees responsible for the day-to-day management of computer systems that send, receive and house e-mails. Custodians typically have control over these systems and may be able to access data stored on them.
Federated search: This is a type of search that searches multiple locations simultaneously by using software that coordinates the search across multiple networks, servers and other electronic storage devices.
Filing: This refers to the collection of information into a central location or repository. Lawyers file lawsuits in civil courts, but also many different types of legal documents as part of their day-to-day work.
Frequency: You will find it is much easier to manage e-Discovery when you create policies early on regarding how often you should retain data and when you should do full backups of your computer systems. Recurring backups are particularly important because they allow you to recover past data, including deleted files and files that were mistakenly overwritten.
Inventory: This refers to a complete list of all the computer systems and data sources in your organization, as well as records of who has access to each computer system. The information is compiled into a report that allows you to identify which documents or other files might be relevant to a particular case.
Legal hold: This refers to when a legal process freezes documents or other data so they can't be altered or moved without someone's permission. It is used in litigation involving individuals who have reached serious financial difficulties and governments trying to stop terrorist organizations from moving money around the world.
Referrals: This is when a discovery tool or human reviewer finds data relevant to a case and records it in a report. Once the data is recorded, the review process can be repeated to find additional relevant documents.
Tip #1: Decide Who Will Be Responsible for E-Discovery
Before you start retaining data, it is important to assign responsibility for e-discovery. Whether you decide on an ad hoc basis or create a dedicated e-discovery committee, this will be critical in helping you stay organized through the process. You may also want to designate an individual responsible for oversight and compliance. The responsibility can then be passed down to others as needed throughout the process.
Tip #2: Know What Data You Have
It is also important to know what data you have across your organization and where it is stored. This will help you determine if you need to retain anything, or if all the relevant documents have already been turned over. If the latter is true, then you won't be in violation of any legal hold notices issued by the courts.
Tip #3: Keep the Process Going
Once you know what data needs to be retained, it is important to keep the process going so that you will have copies of everything that is relevant to your case. This will save you from having to search through old reports and ask employees if they remember a bit of information that can help. You can also create new workflows for e-discovery activities, so that this sort of work is minimized as much as possible throughout the discovery process.
Tip #4: Create Good Records
You should also have good systems in place for documenting and tracking when and where data was sent, created or received by individuals.
Conclusion:
A little bit of preparation can go a long way in ensuring your organization is ready for the e-Discovery process, and that you have procedures in place to help you manage what is happening as it happens.
It should be noted that the above does not constitute legal advice, nor does any attorney-client relationship exist between The Law Office of Bob Galbreath, Mr. Galbreath or any representative of The Law Office of Bob Galbreath and his clients for the services listed above. Any information or advice provided is intended solely for educational purposes only.