eDiscovery is an essential process that takes place early in civil litigation matters. It is the exchange of information between parties involved in a legal action or lawsuit. It’s so important because it has implications for a number of activities, including how electronic information is archived, how storage systems are managed, how easy it is to search for relevant content, how content deletion policies can be set up and modified, and how corporate data policies are developed to mitigate risk and adhere to local and international data regulations, such as the Protection of Personal Information Act (POPIA) in South Africa and GDRP in Europe.
South Africa has become increasingly familiar and reliant on Electronic Document Review, but eDiscovery remains underutilised and not fully understood – particularly within the context of an organisation’s information management strategy and in how legal firms approach the entire discovery process as it relates to Electronically Stored Information (ESI). Electronic Document Review is only one facet of a much broader discipline.
The importance of eDiscovery should not be underestimated. Failure to properly manage eDiscovery can carry with it serious ramifications, from fines to reputational damage, not to mention the ability to successfully litigate a case thanks to access to discoverable and relevant data. With the volumes of ESI growing exponentially each day, eDiscovery will only grow in significance. The question is – are organisations and legal firms prepared?
eDiscovery in the modern organisation
There are three important issues that decision makers should consider:
- With the growing importance of eDiscovery, are organisations as well prepared for it as they should be?
- Most organisations have factored email into account and have eDiscovery processes in place to support the Electronic Document Review of emails. However, as every business and legal firm is experiencing, a multitude of different data types have now entered the workplace and customer interactions, from direct messaging on collaboration platforms such as Slack and Microsoft Teams, to WhatsApps, customer facing chat bots, social media platforms and a variety of different file types, including jpegs, PDFs, and long strings of comments and replies. Where and how this data is stored and managed only complicates matters further, including how eDiscovery and Electronic Document Reviews are conducted.
- eDiscovery and Electronic Document Review rules and requirements continue to evolve. This is placing additional demands on IT teams, legal teams and information governance teams, not to mention decision makers.
The dangers of poor eDiscovery
eDiscovery is an essential element of any organisation’s information management strategy because of the significant implications that can result from poor eDiscovery. For example, during the discovery process, when one party must present relevant data to another during litigation, the Electronic Document Review process can include thousands of gigabytes of data and hundreds of thousands of documents and different data types. Without a streamlined process that manages how data is stored, archived and indexed, it is highly likely that key information will be missed, or even that privileged information is presented to the opposing team. It is also difficult to present the best legal argument without access to the most relevant data.
By contrast, done correctly, eDiscovery will ensure a relatively strict process and set of requirements that streamlines storing and searching for content that may be relevant for use as evidence in pre-litigation activities or a trial.
Viewed more broadly, eDiscovery also supports best practice within an organisation. For example, early case assessments will be far more likely to paint an accurate outcome if litigation is pursued, and senior managers can easily manage and prevent potentially damaging content being communicated by employees.
The gap between significance and preparedness
eDiscovery is not new. Most organisations and legal firms are aware of it, and every litigation now includes Electronic Document Review. However, there is still a clear lack of preparedness for it in contrast to its perceived importance. In most cases, emails are relatively simple, particularly if the emails being reviewed are under one month old. Where things become more complex is if emails are older than one month or various data types must be reviewed – particularly if there are live chats, comments, replies and updates to posts.
So, what’s the solution? The first is to familiarise yourself with eDiscovery and the Electronic Discovery Reference Model (EDRM), which is considered best practice in eDiscovery. It is an extremely helpful model that outlines the nine stages of eDiscovery, although it is a guideline, more than a prescriptive process.
Next, work with a partner such as LexTrado that understands eDiscovery and the various technology solutions and platforms that support eDiscovery and Electronic Document Review. eDiscovery is based on digitally created data and only digital solutions can support and streamline the volumes of data that are now being created.
Finally, focus on investing in the skills that support eDiscovery and Electronic Document Review. This can be done in-house or through partnering with the right legal firms.