Web’s Most Asked Questions: eDiscovery

What is eDiscovery? Who needs eDiscovery? When is eDiscovery used? Why is eDiscovery important?

Of course, I could write an entire thesis about these four “most asked questions”. And they deserve to be answered separately and in detail with all the necessary legalese.

But then … you’re probably on the way into work. And you’re probably not a lawyer.Instead, I’ll extensively morph and paraphrase the first result that comes up from Wikipedia.

Discovery is the process by which parties involved in civil proceedings, such as litigation can obtain evidence from the other parties by utilising request for answers to interrogatories, request for production of documents, request for admissions and depositions or other mechanisms.

Electronic discovery (also e-discovery or eDiscovery) refers to discovery in the above proceedings where the information or evidence sought is in electronic format often involving prior legal review for business secrets, privacy, privilege and relevance before data are turned over to the requesting party

I will be bold (when am I not?) and say that although common law Civil Procedure Rules gave birth the Discovery and eDiscovery, the principles and processes also fit neatly into regulatory actions, arbitration or even internal investigations performed by HR, Compliance or in-house Legal Counsel.

Since 2006, the Electronic Discovery Reference Model (EDRM.net) has been the focus of eDiscovery professionals as the go to simplified model of the multitude of nuanced complexities involved in eDiscovery.

With the exponential progress of technology and explosion of data generated, eDiscovery involves the discovery of forensically defensible evidence from every aspect of the technology landscape

  •       from Internet Toasters to Sharepoint
  •       from Dark Web to Cloud
  •      from iPhones to Office 365
  •       SAP to 5.25” floppies (still!)

In fact, anywhere where there may be data stored pertinent to the Discovery exercise. Therefore – another aspect of eDiscovery is providing advice for “readiness” in the event of a crisis that requires an element of Discovery.

After those questions Google suggested “what is eDiscovery Office 365?”.

The answer is: look under the Office 365 Security & Compliance Center. If you have a valid subscription that includes the eDiscovery functions, all the information is there.

What are eDiscovery Tools?

Well, I guess this means “what are the tools of the trade”. That’s what I’ll go with anyway. I purposely ignored eDiscovery services, as that will be the subject of a future post

This is a slightly more complex question than at first glance. Immediately your mind jumps to software. There’s lots of it. And it does lots of different things.

Software for eDiscovery helps to deal with each of the sections of the EDRM model mentioned above. There’s software for Information Governance, Identification, Preservation, Processing, Review and Production and many more in between.

Relativity, DISCO, Nuix, Ringtail, eDiscovery Tools (not to throw you off.. but its also the name of a good tool in the marketplace). You also could include Document Review, Analytics, AI and Forensic software… and even O365 and end-point protection software.

These tools are designed to do two things. One is to break down data and analyse it, so all the information about that data is made available (such as metadata) and insights can be concluded. The other is to present data in a form that’s easy for a human or computer to understand and review in the context of the exercise.

My answer to the question is a little simpler.

The main tool for eDiscovery is an inquisitive mind that asks questions of instructions, that applies logic to process and contributes to informing a risk-adverse approach to the exercise.

Many people may have points to add, subtract or edit, but I hope that this short synopsis helps.

Next week… What, When, Where, How “Martin Nikel”.

Or Regulatory investigations.

If you’ve read this far, “smash the like button”, or leave a comment on which topic should be next!

HTH

Martin.

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