A Practical Overview of e-Discovery & Litigation Support
During litigation, lawyers must ensure that each and every legal transcript and document is thoroughly reviewed and marked for significance. Historically, this was done by filing all the documents and transcripts relating to the case, irrespective of their importance. Notes were logged and copies were made of all major documents deemed highly significant. In recent times, the rapid advancement of technology has resulted in the advent of litigation support software and electronic discovery, or e-discovery, which enable lawyers to organize, categorize, search and review legal documents within an electronic database. Like the technology it utilizes, e-discovery is an exponentially changing and evolving process. For modern attorneys, its application is of fundamental importance, predominantly in the area of litigation during the discovery stage.
Lawyers tackling civil cases anticipate and handle bulky records. Storing, reviewing, searching, sending and analyzing documents are critical for every lawyer. Thus, procuring appropriate software and skilled backup is vital for a law firm. Electronically stored information (ESI) includes electronic mail, transcripts, documents, presentations, records, databases, voicemail, video and audio files. In addition, with the increasingly significant influence of technology in regular court proceedings, several law firms and legal practitioners have included litigation support teams.
The Process of e-Discovery
Electronic documents are more compounded than hard copy documents and include metadata like time-date stamps, information of author and recipient, properties of the file, etc. Protecting the original data and metadata for ESI is necessary to avoid allegations of damages or interfering with proof during the court proceedings of a case.
Once the records are acknowledged by both parties of a case, the significant and pertinent documents relating to the case are positioned in a hold whereby those documents cannot be altered, removed or damaged. Subsequently, the important records are gathered, culled, indexed and cataloged into a list while, simultaneously, the non-relevant documents are separated. These records are then hosted in a safe and secured environment and availed to reviewers to code the transcripts in accordance with their importance to the case. The significant documents relating to the litigation may be transposed into PDF files for the purpose of production, resulting in the possible separation of documents. Employing technology assisted reviews and methods such as predictive coding minimizes the amount of documents requiring review, making it both easier and faster to generate the nucleus of evidence for the case.
Electronic documents and paper documents share identical legal status. However, electronic documents come with certain additional advantages in terms of data retrieval, storage, transfer and safety. For example, e-documents can be shared and worked on without needing to print paper copies, and can be reviewed from any place around the globe. Using e-discovery, a lawyer can remove the bulk of paper documents that need to be stored in the law office, which in turn creates a lot of free physical space. ESI can also be stored safely without the risk of being lost, mislaid or damaged. The ease in searching and finding the required documents also saves time. Traditionally, documents relating to a case were transferred between parties by making Xeroxed copies and sending them via mail or faxes in bulk. ESI can be transferred with just one click, which saves significant time, effort and money.
Electronic discovery isn’t without its disadvantages—it raises multiple legal, security, and personal privacy concerns, many of which have yet to be definitively rectified.
In this age of technology, e-discovery is practically inevitable and there are rules and standards that individuals/corporate need to follow to preserve and produce ESI. These rules are constantly updating with changes in technology– to ensure that your client is adhering to these standards, be sure to familiarize yourself and your client with the current rules concerning ESI maintenance.
Recent amendments to the Federal Rules of Civil Procedure require litigants to store, retain, preserve, and if need be, exchange e-files and information. A party may be liable for spoliation of evidence if he or she deletes any of the e-files on litigation hold (even inadvertently), so be sure to diligently store and preserve all electronic records. A party may have to depend on software to store, process, and retain e-files subject to litigation hold. This software would be an additional cost, especially when one is anticipating litigation. E-discovery software vendors usually provide online support to assist with most common troubleshooting issues, so be sure to budget enough time and resources to familiarize yourself with the software before the eleventh hour.
These issues and others can be easily handled if you are familiar with and abide by the current rules relating to e-discovery. For example, parties may need to be extra stringent with their document retention policies when anticipating litigation—for caution’s sake, you may consider temporarily suspending document destruction policies altogether.
While electronic discovery can certainly be a blessing and plays an increasingly vital role in litigation support, it is not without complexities and associated risks. Despite these drawbacks, e-discovery has become an indispensable workflow facet for most modern attorneys. Don’t make the critical mistake of ignoring or avoiding it—take the time to understand the rules, applications, and potential predicaments associated with e-discovery. You’ll likely save yourself a world of time and a heap of headaches!
About the Author
This article was provided by LegalEase Solutions. LegalEase is a specialized legal research and writing company serving attorneys, law firms and legal departments across the US and beyond since 2004. For more information, please feel free to contact us at 1(877) 712-8003 or email us.
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