Information governance serves as the foundation for the entire process. It provides a framework that defines an organization's approach to creating, managing, and controlling its information assets.
By implementing information governance practices, companies establish decision rights, accountability frameworks, and processes to ensure appropriate behavior in the valuation, creation, storage, use, archiving, and deletion of information.
It enables organizations to proactively manage their information, making it easier to identify and locate relevant data during the eDiscovery process. Information governance ensures that the potentially relevant data is appropriately managed, organized, and accessible, reducing the time and cost associated with eDiscovery.
Moreover, information governance helps organizations meet legal and regulatory requirements by establishing policies and procedures that govern information management and retention. It ensures that data is retained and disposed of in accordance with legal and regulatory obligations, reducing the risk of non-compliance and potential legal sanctions.
Parties have a legal obligation to preserve relevant ESI as soon as litigation becomes easily foreseeable. However, they must first decide what is relevant before they can save anything. E-discovery teams employ a range of techniques to locate sources of potentially pertinent ESI, including as evaluating case details, speaking with influential individuals, and evaluating the data environment.
After identifying pertinent ESI, it must be preserved from "spoliation," which is the legal term for the destruction or altering of evidence. While there are several methods for preserving ESI, the most usual is through a legal hold procedure. A legal hold is a formal communication delivered by the legal team to relevant data owners (referred to as "custodians") asking them not to remove specific ESI.
It's important to note that the preservation stage is an ongoing process that continues until the completion of the legal or regulatory matter. Organizations must continuously monitor and reassess the need for preservation as circumstances evolve and new information arises.
By effectively executing the preservation stage, organizations ensure that potentially relevant ESI is safeguarded, maintaining its integrity and availability for subsequent stages of the eDiscovery process, such as collection, processing, review, and production.
Relevant ESI ultimately must be gathered and centralized. We are not going to dive into the various collection techniques and technology here, but what's crucial to remember is that whatever method is used must be legally feasible, which means that the contents and metadata (key characteristics of the data such as date generated and file size) must not be altered as a result of the collection process.
During the processing phase, collected ESI is prepared for attorney examination and review. Typically performed by specialized software, processing might entail extracting files from folders, deleting meaningless system data, or converting certain file formats in preparation for attorney review.
It's important to note that the processing stage may involve the use of specialized software and tools designed for eDiscovery processing tasks. The specific techniques and processes employed may vary based on the eDiscovery platform or solution used and the requirements of the case.
By far the most expensive of the e-discovery stages, review involves evaluating ESI for relevance and attorney/client privilege (this ESI is exempt from e-discovery). Organizations typically outsource review to law firms. However, new technologies allow in-house legal teams to use artificial intelligence (AI) tools to distinguish between relevant, non-relevant, and privileged documents. These tools save time and money, making internal review much more viable.
It's important to note that the review stage requires legal expertise, subject matter knowledge, and adherence to legal and ethical obligations. Review teams follow established review protocols and guidelines to ensure consistency, fairness, and defensibility in the review process.
Legal teams examine relevant ESI to find crucial patterns, establish case theories, and develop tactics for discovery, negotiations for settlement, and litigation during analysis.. Note that analysis in particular is not limited to this stage; rather, it should occur throughout the eDiscovery process.
It's important to note that the specific analysis techniques employed during the review stage can vary depending on the nature of the case, the available tools and technologies, and the expertise of the legal team.
By effectively conducting analysis during the review stage, legal teams can uncover critical insights, make informed decisions, and strengthen their case strategies based on the evidence and information extracted from the processed ESI.
The production stage is the final phase of the eDiscovery process where relevant and responsive electronically stored information (ESI) is prepared and produced to opposing parties, regulatory bodies, or other stakeholders as required by legal obligations or court orders. This stage involves the careful compilation, organization, and delivery of the selected ESI in a format that is acceptable and usable by the receiving party.
It's important to note that the production stage requires careful attention to detail, adherence to court orders or agreed-upon protocols, and coordination with legal teams and stakeholders involved in the case.
By effectively executing the production stage, organizations fulfill their obligations to produce relevant ESI, ensure the accuracy and completeness of the produced documents, and contribute to a fair and efficient legal process.
This involves how electronic evidence is displayed as evidence at hearings, depositions, and trials. Since the transition from paper to mostly electronic evidence, the presentation method has changed drastically. However, because presentation typically happens post-discovery, we won't go over it in much detail.
It's important to note that the presentation stage is typically part of the broader litigation process, and the specific methods and tools used can vary depending on the nature of the case, jurisdictional rules, and the preferences of the legal team.
While the term "presentation stage" may not have a specific meaning within the eDiscovery process, the effective presentation of evidence and arguments is crucial in conveying a compelling narrative and supporting the desired outcome in legal proceedings.