Discovery is a legal term that refers to pre-trial phase of a lawsuit where both parties request information from each other to find facts for the case and to see how strong the arguments are on either side. The US Federal Rules of Civil Procedure (FRCP) have governed the discovery of evidence in lawsuits and other civil cases since 1938. For decades, paper-based discovery rules were applied to e-discovery. In 2006, amendments to the FRCP accommodated the discovery practice and requirements of ESI in the litigation process.
Other global regulations have requirements specific to the ability of an organization to produce electronic evidence. Examples include the UK Bribery Act, Dodd-Frank Act, Foreign Account Tax Compliance Act (FATCA), Foreign Corrupt Practices Act, EU Data Protection Regulations and Rules, global anti-trust regulations, sector-specific regulations, and local court procedural rules.
Electronic documents usually have Metadata (which may not be available for paper documents) that plays an important part in evidence. Legal requirements come from the key legal processes such as e-discovery, as well as data and records retention practices, the legal hold notification (LHN) process, and legally defensible disposition practices. LHN includes identifying information that may be requested in a legal proceeding, locking that data or document down to prevent editing or deletion, and then notifying all parties in an organization that the data or document in question is subject to a legal hold.
This figure depicts a high-level Electronic Discovery Reference Model developed by EDRM, a standards and guidelines organization for e-discovery. This framework provides an approach to e-discovery that is handy for people involved in identifying how and where the relevant internal data is stored, what retention policies apply, what data is not accessible, and what tools are available to assist in the identification process.
The EDRM model assumes that data or information governance is in place. The model includes eight e-discovery phases that can be iterative. As e-discovery progresses, the volume of discoverable data and information is greatly reduced as their relevance is greatly increased.
The first phase, Identification, has two sub-phases: Early Case Assessment and Early Data Assessment (not depicted in the diagram). In Early Case Assessment, the legal case itself is assessed for pertinent information, called descriptive information or Metadata (e.g., keywords, date ranges, etc.). In Early Data Assessment, the types and location of data relevant to the case is assessed. Data assessment should identify policies related to the retention or destruction of relevant data so that ESI can be preserved. Interviews should be held with records management personnel, data custodians or data owners, and information technology personnel to obtain pertinent information. In addition, the involved personnel need to understand the case background, legal hold, and their role in the litigation.
The next phases in the model are the Preservation and Collection. Preservation ensures that the data that has been identified as potentially relevant is placed in a legal hold so it is not destroyed. Collection includes the acquisition and transfer of identified data from the company to their legal counsel in a legally defensible manner.
During the Processing phase data is de-duplicated, searched, and analyzed to determine which data items will move forward to the Review phase. In the Review phase, documents are identified to be presented in response to the request. Review also identifies privileged documents that will be withheld. Much of the selection depends on Metadata associated with the documents. Processing takes place after the Review phase because it addresses content analysis to understand the circumstances, facts and potential evidence in litigation or investigation and to enhance the search and review processes.
Processing and Review depend on analysis, but Analysis is called out as a separate phase with a focus on content. The goal of content analysis is to understand the circumstances, facts, and potential evidence in litigation or investigation, in order to formulate a strategy in response to the legal situation.
In the Production phase, data and information are turned over to opposing counsel, based on agreed-to specifications. Original sources of information may be files, spreadsheets, email, databases, drawings, photographs, data from proprietary applications, website data, voicemail, and much more. The ESI can be collected, processed and output to a variety of formats. Native production retains the original format of the files. Near-native production alters the original format through extraction and conversion. ESI can be produced in an image, or near paper, format. Fielded data is Metadata and other information extracted from native files when ESI is processed and produced in a text-delimited file or XML load file. The lineage of the materials provided during the Production phase is important, because no one wants to be accused of altering data or information provided.
Displaying the ESI at depositions, hearings, and trials is part of the Presentation phase. The ESI exhibits can be presented in paper, near paper, near-native and native formats to support or refute elements of the case. They may be used to elicit further information, validate existing facts or positions, or persuade an audience.
