Legal Process Outsourcing
E-Discovery is complicated but the solution is simple
In today’s highly digitised world, the legal industry, though a bit slow in technology adoption, has been evolving to keep pace with the complexities of electronic data. Since organisations store and manage their data using digital systems, digital records have become critical to modern litigations. The process of gathering of evidence – known as discovery – thus gave way to electronic discovery, also known as E-Discovery or eDiscovery.
eDiscovery refers to discovering or obtaining Electronically Stored Information (ESI) related to a case. During legal proceedings, opposing parties collect and share relevant evidence as electronic records to support their claims. The digital evidence includes text, images, audio, video, calendars, messages, cell phone data, databases, spreadsheets, etc. The need is to produce defensible evidence quickly and cost-efficiently to support the legal process. Digital data records have metadata containing vital information such as timestamps, author names, etc., making searches easier compared to sifting through mounds of paper files. Though relatively new, eDiscovery is now an essential aspect of legal proceedings globally.
Let us briefly understand the eDiscovery process to see what it entails.
E-Discovery: The process followed
Since 2005, the Electronic Discovery Reference Model (EDRM) has guided the norms of functioning for eDiscovery. Though not all eDiscoveries follow every step, the key stages are:
Information governance: Popularly called data governance, this term refers to policies and guidelines organisations must establish to manage and protect their data assets.
Identification: This step involves identifying various documents required for the litigation process. Understanding what, where, when, how, and from whom to collect the data guides the activities here.
Preservation: Securing the identified data from unwanted access is called preservation. The most common data preservation method is a formal communication to the data custodians instructing them not to destroy or alter the evidence, called a legal hold.
Collection: In this step, the data is collected using various forensically sound and defensible techniques and handed over to legal counsel for further processing.
Processing: During processing, collected data gets converted into the court-mandated necessary formats. In this phase, specialised tools help extract relevant information for review by reducing volume, removing duplicates, etc.
Review: The review phase establishes relevance, responsiveness, and privilege. While many firms outsource this step, AI-based tools are becoming popular for in-house reviews.
Analysis: An analysis follows the review phase to derive insights from the documents to help build the case.
Production: This step involves producing the documents in court in the required format.
Presentation: Using the relevant evidence during court proceedings is called presentation.
Challenges and solutions
Many challenges crop up across the various eDiscovery stages. Let us explore the key challenges and the solutions to tackle them efficiently.
Data volume: Sometimes, eDiscovery results in overwhelming data volumes that spike the processing time and cost. eDiscovery timeline is often short, and failure to submit relevant documents within it can lead to penalties.
Solution: Use tools and techniques, such as Early Case Assessment (ECA), data mapping and filtering, and technology-assisted review (TAR) using predictive coding models, to identify relevant information. When backed by streamlined in-house processes, it reduces the time and cost involved significantly.
Multiple data formats: The various data formats, such as emails, videos, audio, spreadsheets, databases, etc., are not always compatible with all tools. At times, data may be stored in legacy systems in proprietary formats.
Solution: Use customisable eDiscovery platforms with automatic multiple document format processing capabilities. Also, train the personnel using the eDiscovery software on the various features to achieve the desired results. Another option is to utilise ediscovery managed services or employ forensic experts to extract relevant data.
Multiple data sources: The data may reside on multiple storage devices and not necessarily be in a centralised location.
Solution: Update the data governance policies to ensure centralised data storage with authenticated access. Use eDiscovery tools with capabilities to comb multiple sources efficiently or avail legal research services from service providers with the necessary expertise. These service providers can also ensure legal and regulatory compliance.
Data privacy and security: Most business data is confidential and must be secured from unauthorised access. Also, regulations such as GDPR or other local laws come into effect, the breach of which can have severe consequences. Even accidental leaks of confidential information can jeopardise the legal proceedings.
Solution: Choose eDiscovery software that adheres to the necessary regulations to ensure data confidentiality and integrity during collection and preservation. Also, the data governance policies must cover guidelines for redacting or anonymising confidential data for eDiscovery.
Cost: The eDiscovery cost spikes based on the amount of data being collected and preserved. Converting multiple formats into usable ones hikes it further. Also, the review and preservation process is expensive due to the complexity, personnel costs, and technologies involved.
Solution: Remote reviews using virtual conferencing tools or conducting TAR using predictive coding tools help reduce the costs. Exploring legal process outsourcing with flexible pricing models can also reduce costs.
Though the eDiscovery terrain is complex, organisations can simplify it with a focussed strategy, using appropriate technology and tools and ensuring proper collaboration and communication between all stakeholders. Such an approach is called right-sized eDiscovery, and results in cost-effective and efficient outputs.
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