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Legal Discovery of Electronic data

Author: Barry Foster

In recent years there has been an explosion in the amount, and type, of documents in business. Many organisations are now reliant on electronically stored information (ESI) and communications to conduct their business. Recent surveys indicate that around 90% of business documents are never printed and remain as ESI for their lifetime and that around 70% f the ESI stored can be duplicates..

The most obvious forms of ESI are email and efiles . Efiles are your word processing and spreadsheet documents. However, they can also include databases, text messages, and even tweets and postings to blogs and social network sites. Huge quantities of ESI are created during the course of an ordinary day. It would not be unusual for someone within a business who creates or controls ESI (a custodian) to send, receive or handle more than 50 emails or documents in one day. Spread over time this figure multiplies drastically, 1000 per month, 11,750 per year per custodian.

As a result, if a business becomes subject to litigation, the business managers and their legal counsel are often required to sort through huge volumes of ESI. In large litigations it is common to have tens of thousands of emails and other efiles that need to be reviewed for relevance.

The new High Court Rules (High Court Amendment Rules (No 2) 2011) (and District Court Rules) promoting the use of electronic discovery come into force on 1 February 2012. The changes to the rules reflect the ever-increasing volume of data (in particular, electronic data) in modern litigation, and the need to effectively and efficiently handle the discovery process.

The key features of the “default” regime under the new rules include the following:

  • Discovered documents must be exchanged electronically
  • Parties must provide a standardised list of discovered documents
  • Documents must be provided in PDF format (unless not possible for particular file types), with the document number as the filename
  • Native files must be provided if requested
  • Parties must take reasonable steps to exclude duplicates
  • Emails and attachments are to be listed separately but sequentially on the document list

As can be seen, the new rules mainly address the production and presentation stages of the internationally accepted e-discovery reference model.

There are a number of other phases in the model which need addressing to conduct an effective discovery and this article addresses some key considerations for each of the phases.

Correctly executed identification, collection and processing, reviewing and analysis of non-responsive e-mail and e-files helps you eliminate unnecessary costs and reduce time. 

The management of your organisations information and the identification of who controls data and where that data is stored within the business systems, are critical first steps in enabling your organisation to effectively respond to litigation. These steps are ideally conducted as a management activity before any litigation occurs. They normally involve the implementation of policy around who is responsible for data and data retention.
Electronic discovery

Mapping data storage locations can also help reduce time and costs, should a discovery activity have to occur. E-Discovery Readiness Reviews can also be part of this process. Our E-Discovery Readiness Checklist can assist with identifying some of these issues.

Litigation, governmental inquiries and internal investigations generally require that ESI and its associated metadata (data about data, e.g. date and time information) should be collected in a manner that is legally defensible, proportionate, efficient, auditable and targeted to the matter at hand. The correct preservation and collection of data ensures the sustainability of any ESI that is collected. If done completely, it can provide for seamless feedback into the identification phase if further information comes to light about previously unknown custodians or ESI.

Processing enables you to greatly reduce electronic data sizes at the earliest stages in the e-Discovery lifecycle. For a fraction of full processing costs, pre-processing will de-NIST (removing known data sets), de-dupe (removing duplicates), and even apply dynamic date filters to quickly cull large sets of data. By removing system files and unwanted documents before processing begins, you will save both time and money throughout the e-Discovery process. This is the phase where non electronic data (scanned documents) can also be incorporated in to the discovery dataset especially if they have been processed for Optical Character Recognition (OCR).

Review is a critical component to most litigation. There is often more than one review stage conducted. Reviews are conducted by legal staff and are used to identify responsive documents to produce, and privileged documents to withhold. There is always a need to understand the scope of the review, and to consider the appropriate supervision and procedures for managing the reviewers. The selection of the appropriate vendor, tools and platform to support the review are key considerations in this phase. The use of advanced technologies like conceptual searching and relationship analytics can be used to support and enhance the review process.

Analysis occurs in all phases including the pre-discovery management and identification phases. The main purpose is to remove any irrelevant and non-responsive data, identify ESI that needs special handling (confidential or privilege documents) and to focus the data for review and subsequent production.

As identified above the requirements for production and presentation are covered under the forthcoming High Court Rules, and this article does not attempt to circumvent appropriate legal advice that should be obtained in how this should be conducted.

We have provided some considerations for each of the phases of the full discovery model; some of the most critical phases are the information management and identification phases. If your organisation’s data is not managed properly, you could find yourself in a situation unable to provide information that you are required to disclose. This is especially problematic when the other parties to litigation are able to do so effectively.

If you have any questions about E- Discovery readiness, Pre Discovery processing or wish to discuss the forthcoming High Court Rules please contact Barry Foster.

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