E discovery gathers electronically stored information (ESI). It has been a useful instrument in many government investigations and essentially, civil litigations. In the September and October 2007 issue of Information Management Journal, the author wrote that due to the Federal Rules of Civil Procedure (FRCP), the use of e discovery was provided with more restrictions.
The amendments of the FRCP include the following:
- Harbor provisions for routine operations needed for electronic files
- How to deal with data that is difficult to access
- How to handle accidentally released material
- Maintenance and preservation of ESI
- Steps in managing electronic file production requests
These changes paved the way for people who handle e discovery, mainly those with highly legal professions, to learn and study more about it. This is because an expanded knowledge would mean a better source of gathering evidences that could result in a better defense.
Gathering ESI from e discovery can be made through various methods. It is for this reason that a lot of people have different opinions on how ESI should be managed, organized, kept and recovered. Some suggestions are quite costly moneywise and time-wise. Due to the fact that technology changes so easily, it also adds to the factors to be considered in choosing the best method of keeping and using data.
Effectively responding to e discovery within the bounds provided for in the FRCP requires a lot of work. It also requires critical thinking in order to maximize its use. For this reason, you must consider your processing choices.
E Discovery Questions for Processing Choices
- Who are considered key persons in the case?
In e discovery, the person must be identified. These people should not just be the employers or executives, but other personnel from other departments that may be involved.
- Where are the files and documents placed?
When the location of these files are identified, it becomes easier to know what the key person could have access to and where he could have opened said files. It could be through his phone, tablet, home computer or other gadgets which he might have linked to the company network.
- How are collections filtered and files chosen?
By knowing this, the methods of how files are collected are made known. It is then easier to determine collected data during a certain period, or using selected keywords or terms. By learning this process, the discovery team can also easily detect if any file or application is removed from the collection based on the files open and common to all computer users.
- How do you handle protected files?
Files discovered through e discovery are usually encrypted or password protected. In these cases, it is impossible to open the file without knowing the password or decrypting the file. Although it is possible that simple hacks can be made to open them, those cases are highly unlikely. A typical decrypting process takes a significant amount of time. Hence, in e discovery cases, key people should be asked for the password right away, or if he refuses, he must be sent a subpoena to appear in court.
- What do you do to duplicate or nearly duplicated documents?
Electronic files usually have their duplicates. Sometimes these same files may come from email attachments, or two or more people could have saved the same file. In e discovery, it is easy to pinpoint exactly the same files to help persons limit the number of files they need to review.
When metadata is identified and extracted from the files, it is the time when identifying exact duplicates occur. De-duping in this case is necessary although it will cause minimal delay.
When you speak of de-duping, or the standard process of de-duping, it means that the exact duplicates are identified and then eliminated. It is not de-duped when it is the same document but there is change within the document no matter how minimal that difference is.
It is important to know that in litigation cases, both parties have the same definition of de-duping. This is because while in law enforcement, it is not deleted but only identified, some systems de-dupe by deleting the duplicate files.
To make sure that both sides of the case know the definitions of some essential terms in e discovery, it is a good idea to discuss them between the parties during the pre-trial conference. The purpose is to avoid any discrepancy in information regarding the number of files that both sides have.
Near duplicates are those that have been significantly altered and contain only a part of the original document. For near duplicates, it is advisable that files like these are viewed as a group, This method is better than the normal comparison review time because it saves more time and resources. When near duplicates need to be identified and compared with any other document, sophisticated software may be necessary to speed up the processing time.
- What should be the format in receiving electronic evidence?
According to the new FRCP rules, the parties to the litigation case have the discretion to decide the format in which they wish to submit evidence. Without discussing the proper format, both parties must submit the electronic evidences as they were acquired from e discovery, or in a format that is reasonably usable.
So in choosing a format, the choices of the legal team is usually based on the team’s own standard litigation review system. In these systems, both original and converted files which can be with or without metadata and the full text. Documents or files with an extracted metadata may be beneficial but may also pose problems.
For instance, if native files have with them extracted metadata, the original file is manifest, but once metadata is extracted, it can no longer be attached with a Bates label. A Bates label is a marking used as a technique to insert a unique code in the data that remains even after changes have been made.
The real time consuming task in e discovery is conversion of native files. It is the most expensive task and even takes away responsive material that originally exist with the native files. Hence, the best recourse would be to only receive and use files in native format. It is through this process that the use of the files could be maximized or used more extensively.