eDiscovery determines whether a legal case can be won or lost

In the past, the parties involved in a legal dispute would exchange relevant information in the form of physical documents, with boxes upon boxes of paper documents delivered between law firms and legal teams. Today, documents are mainly generated digitally, requiring a fundamental change in the discovery process to encompass eDiscovery, or electronic discovery.

While moving towards a paperless process has its benefits, eDiscovery presents new complexities as well. eDiscovery and Electronic document review encompass the entire process required for parties to share, review, and collect electronically stored information for use as evidence in a legal matter. It’s a long process, made even more intricate by the sheer volume and different formats in which data is created. Emails, Microsoft Word documents, social media posts, PDFs, audio and video files, internal collaboration platforms, company-specific databases and customer data, all fall under the domain of electronic discovery and Electronic document review.

If we consider that the average legal case in South Africa produces approximately 5 453 GB of data, has 31 subjects per case and that only 304 GB can be culled from the data, it’s clear that legal teams must be proficient in finding, preserving and extracting relevant data in a legal case. It’s the proverbial needle in a haystack, and it’s becoming the cornerstone of whether cases are won or lost.

Legal cases are built on electronic data

In today’s digital age, eDiscovery and Electronic document reviews are an essential component for any attorney to provide their clients with competent representation. The most common malpractice claims are the result of simple laziness or bad recordkeeping on the attorney’s part, and unfortunately, inexperience with eDiscovery impacts a legal firm’s ability to represent their clients.

This means that attorneys now have to be experts in navigating digital data. Working with a partner like LexTrado, which offers an independent data processing and hosting centre (or Legal Exchange), ensures that electronic discovery projects are conducted effectively across a platform that provides a secure and confidential exchange of information during judicial matters.

However, while it’s critical to work with experts and to leverage the best available software and platforms, it’s also for legal professionals to understand how the eDicovery process works, as this is now a cornerstone of modern legal discovery and strategies.

The Electronic Discovery Reference Model (EDRM) model

Around the world, an Electronic Discovery Reference Model (EDRM) is widely considered to be the definitive framework for the eDiscovery process. The EDRM divides the eDiscovery process into nine iterative stages. Because the process is long and complex, many of the stages could be repeated multiple times.

Information Governance (IG): IG is the process of getting data in order to mitigate risk and expenses. Businesses are creating, collecting, and storing more data than ever before, and this data must be kept secure, private, and compliant. The role of information governance is therefore to ensure that businesses follow clearly defined procedures for how they create, manage, store, and secure electronically stored information. This includes the legal and regulatory obligations tied to eDiscovery.

Identification: To prepare for both civil and criminal litigation, legal teams need to identify and decide which pieces of electronic data are relevant.

Preservation: Relevant electronic data cannot be destroyed or altered. A legal hold sent to the custodians of the data informing them not to delete certain electronic documents is essential, although this can only take place once crucial data has been identified. In many cases, data will continue to be created and updated during the legal process, making the preservation of the original data critical.

Collection: Electronic data is now gathered for processing and review. Once again, there must be no alterations to the data.

Processing: The collected electronic data is prepared for attorneys to analysis. Specialised software, such as LexTrado’s solutions, help to reduce the volumes of data that legal teams need to analyse.

Review: This stage involves evaluating electronic data for relevance and privilege. Once again, given the sheer volumes of electronic data, software is essential to distinguish between relevant and non-relevant documents.

Production: Relevant electronic data is presented as evidence following court rules and procedures.

Presentation: The final step in the eDiscovery process is displaying electronic data as evidence in a trial or deposition hearing.

Focusing on a win

Yes, eDiscovery and Electronic document reviews are both complex and laborious, but they are an unavoidable part of the larger legal process. Attorneys who follow best-practice eDiscovery and Electronic document review processes are able to deliver better legal representation to their clients, avoid malpractice complaints and censure by judges, and often, can increase profit margins too.