Electronic discovery (also e-discovery or ediscovery ) refers to findings in legal proceedings such as litigation, government investigation or the Freedom of Information Act request, where the information sought is in electronic format (often referred to as information stored electronically or ESI). Electronic discovery is subject to the rules of civil procedure and agreed processes, often involving review for privileges and relevance before data is submitted to the requesting party.
Electronic information is considered to be different from paper information due to its invisible shape, volume, mortality and perseverance. Electronic information is usually accompanied by metadata not found in paper documents and which can play an important part as evidence (eg date and time of written document can be useful in copyright cases). The preservation of metadata from electronic documents creates a special challenge to prevent spoliation. In the United States, electronic invention is subject to the amendment of the Federal Rules of the Civil Procedure (FRCP), effective December 1, 2006, as amended by December 1, 2015. In addition, state laws now also frequently address issues related to electronic discovery. Other jurisdictions around the world also have rules relating to electronic discovery, including Section 31 of the Civil Procedure Code in England and Wales.
Video Electronic discovery
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The Electronic Discovery Reference Model (EDRM) is a ubiquitous diagram that represents the conceptual view of the stages involved in the e-discovery process.
Identify
The identification phase is when a potentially responsive document is identified for further analysis and review. In Zubulake v. UBS Warburg, Hon. Shira Scheindlin ruled that failure to issue legal written notice every time a court process is anticipated, would be considered very negligent. It creates the idea of ​​legal detention, eDiscovery, and electronic preservation. Custodians who have potentially relevant information or documents are identified. To ensure the identification of complete data sources, data mapping techniques are often used. Because the scope of the data can be abundant in this phase, attempts are made to reduce the overall scope during this phase - such as limiting the identification of documents to a specific date range or search term to avoid overloading demand.
Preservation
The obligation to conserve begins with a reasonable anticipation of litigation. During conservation, data identified as potentially relevant are placed in legal freezing. This ensures that data can not be destroyed. Care is taken to ensure this process can be maintained, while the final goal is to reduce the possibility of data spoliation or destruction. Failure to preserve can lead to sanctions. Even if the court decides the failure to defend it as negligence, they can force the defendant to pay a fine if the missing data puts the defense "at an improper disadvantage in building up their defenses."
Collection
Once the document is maintained, the collection can begin. Collections are the transfer of data from companies to their legal counsel, which will determine the relevance and disposition of data. Some companies that often deal with litigation have software to immediately place legal holds on certain guards when an event (such as a legal notice) is triggered and initiate an immediate collection process. Other companies may need to call a digital forensics expert to prevent data deprivation. The size and scale of this collection is determined by the identification stage.
Processing
During the processing phase, the original file is set up to load into the document review platform. Often, this phase also involves extracting text and metadata from the original file. Various data destruction techniques are used during this phase, such as deduplication and de-NISTing. Sometimes the original files will be converted to formats such as petrified paper (such as PDF or TIFF) at this stage, to allow for easier editorial and labeling.
Modern processing tools can also use sophisticated analytic tools to help document review lawyers more accurately identify potentially relevant documents.
Review
During the review phase, the document is reviewed for responses to discovery requests and privileges. Different document review platforms can assist in many tasks related to this process, including quick identification of potentially relevant documents, and destruction of documents according to various criteria (such as keywords, date ranges, etc.). Most review tools also make it easy for large groups of document reviewers to handle cases, showcase tools and collaborative batches to speed up the review process and eliminate duplication of work.
Production
Documents submitted to opposing lawyers, based on agreed specifications. Often this production is accompanied by a load file, which is used to load documents into the document review platform. Documents can be produced either as original files, or in petrified formats (such as PDF or TIFF), in addition to metadata.
Maps Electronic discovery
Type ESI
Any data stored in electronic form may be subject to production under general eDiscovery rules. This type of data historically includes email and office documents, but can also include photos, videos, databases, and other file types.
Also included in e-discovery is "raw data", which can be reviewed by Forensic Investigators for hidden evidence. The original file format is known as the "original" format. Litigators can review material from e-discovery in one of several formats: printed paper, "original file", or petrified paper formats, such as PDF files or TIFF images. The modern document review platform accommodates the use of original files, and allows it to be converted to TIFF and stamped Bates for use in court.
Electronic message
In 2006, the US Supreme Court amendments to the Federal Civil Procedure Rules created a category for electronic records that, for the first time, explicitly gave email names and instant messaging chats as possible records to be archived and produced where relevant. One type of preservation issue arose during the Zubulake v. UBS Warburg LLC. In this case, the claimant claims that the evidence required to prove the case is contained in an email stored on UBS's own computer system. Because the requested email was never found or destroyed, the court found that they were more likely than not. The court found that while corporate advice directs that all evidence of potential discovery, including email, is maintained, staff directive is not implemented. This resulted in significant sanctions against UBS.
Some archiving systems apply a unique code for each archived message or chat to assign authenticity. The system prevents changes to the original message, the message can not be deleted, and the message can not be accessed by unauthorized persons.
Changes formalized to the Federal Rules of Civil Procedure in December 2006 and in 2007 effectively forced civil claims into compliance mode with respect to appropriate retention and management of electronically stored information (ESI). ESI improper management may result in the discovery of evidence spoliation and the imposition of one or more sanctions including harmful inference jury instructions, summary assessments, financial penalties, and other sanctions. In some cases, such as Qualcomm v Broadcom , lawyers can be taken to bars and endanger their livelihoods.
Database and other structured data
Structured data is usually located in a database or data set. These are arranged in tables with columns and rows along with specified data types. The most common are Relational Database Management Systems (RDBMS) capable of handling large volumes of data such as Oracle, IBM DB2, Microsoft SQL Server, Sybase, and Teradata. Structured data domains also include spreadsheets (not all spreadsheets contain structured data, but those with data set in database tables), desktop databases like FileMaker Pro and Microsoft Access, structured flat files, xml pages, data marts, data warehouses, etc.
Voicemail
Voicemail is often found under the rules of electronic discovery. Employers may have an obligation to maintain voice mail if there is anticipation of litigation involving that employee.
Reporting format
Although hijacking documents for static image formats (tiff & jpeg) has been the standard document review method for nearly two decades, the review of the original format has increased in popularity as a method for document review since about 2004. Because it requires reviewing documents in their original file format , applications and toolkits that are able to open multiple file formats are also becoming popular. This also applies in the storage market ECM (Enterprise Content Management) that blends fast with ESI technology.
Swelling involves the conversion of original files into an image format that does not require the use of native applications. This is useful in the editing of privileged or sensitive information, since editorial tools for images are traditionally more mature, and easier to apply to uniform image types. Attempts to delete the same petrified PDF file have resulted in the removal of edited layers and the exposure of edited information, such as social security numbers and other personal information.
Traditionally, electronic discovery vendors have been contracted to convert original files to TIFF images (eg 10 images for 10-page Microsoft Word documents) with load files for use in image-based discovery database applications. More and more, the database review app has embedded an original file viewer with TIFF capabilities. With the ability of original files and images, it can increase or decrease the total required storage, as there may be multiple formats and files associated with each individual native file. Deployment, storage, and best practices are crucial and necessary to maintain cost-effective strategies.
The structured data is most often produced in a limited text format. When the number of tables being subjected to a major invention or relationship between tables is essence, the data is produced in the original database format or as a database backup file.
Known issues
A number of different people may be involved in electronic discovery projects: lawyers for both parties, forensic specialists, IT managers, and record managers, among others. Forensic examination often uses special terminology (eg "image" refers to the acquisition of digital media) which can cause confusion.
While lawyers involved in case litigation do their best to understand the companies and organizations they represent, they may fail to understand the policies and practices that exist in the company's IT department. As a result, some data may be destroyed after legal freezing has been issued by technicians who have no idea of ​​performing their routine tasks. To combat this trend, many companies use software that stores data correctly across the network, preventing unintentional data spoilage.
Given the complexities of modern litigation and the wide variety of information systems on the market, electronic inventions often require IT professionals either from the lawyer's office (or vendors) and the litigation parties to communicate directly to address technological incompatibilities and agree on production formats. Failure to get expert advice from knowledgeable personnel often leads to additional time and unexpected costs in acquiring new technologies or adapting existing technologies to accommodate the data collected.
Trends that appear
Alternate collection method
Currently two main approaches to identifying responsive materials on custodian machines are:
(1) where physical access to an organization's network is possible - agents are installed on every custodian machine that drives large amounts of data for indexing across the network to one or more servers that must be attached to the network or
(2) for examples where it is impossible or impractical to attend the physical location of the custodian system - the storage device is attached to the custodian machine (or company server) and then every manual collection instance is deployed.
In connection with the first approach there are some problems:
- In the general collection process, large volumes of data are sent across the network for indexing and this has an impact on normal business operations
- The indexing process is not 100% reliable in finding responsive material
- IT administrators are generally unhappy with installing agents on custodial machines
- The number of concurrent custodial machines that can be processed is very limited due to network bandwidth required
The new technology is able to overcome the problems created by the first approach by running the application entirely in memory on every custodian machine and only pushing responsive data across the network. This process has been patented and manifested in a tool that has been the subject of a conference paper.
In relation to the second approach, although self-collection is a hot topic in eDiscovery, concerns are being addressed by limiting the guard's involvement by simply plugging devices and running applications to create encrypted containers of responsive documents.
Technology help reviews
Technology assistance reviews (TARs) - also known as computer-assisted reviews or predictive coding - involve the application of controlled machine learning or rule-based approaches to infer relevance (or other responsiveness, privileges or interest categories) from ESI. Technology assistance reviews have grown tremendously since its inception around 2005 .
After a study demonstrating its effectiveness, TAR was first recognized by US courts in 2012, by an Irish court in 2015, and by a British court in 2016.
Recently a US court has declared that it is "a black-letter law that where the producing party wants to utilize TAR for document review, the court will allow it." In the next issue, the same court stated,
To be clear, the Court believes that for most of the current case, TAR is the best and most efficient search tool. This is particularly so, according to research (cited in Rio Tinto), where the TAR methodology uses continuous active learning ("CAL") which eliminates the issue of seed collection and stabilizes TAR tools. The court will like the City to use TAR in this case. But the Court can not, and will not, force City to do so. There may be times when TAR is so widely used that it may not make sense for those who refuse to use TAR. We're not there yet. So, regardless of what the responding party might want, the Sedona Principle 6 control. Hyles app to force City to use TAR DENIED.
Convergence with information governance
Anecdotal evidence for emerging trends refers to the business value of information governance (IG), defined by Gartner as a decision specification and accountability framework to encourage desirable behavior in judgment, manufacture, storage, use, archiving, and deletion of information. This includes processes, roles, standards, and metrics that ensure effective and efficient use of information in enabling organizations to achieve their objectives.
Compared to eDiscovery, information governance is a somewhat new discipline. But there is an attraction for convergence. eDiscovery - as a multibillion-dollar industry - is growing fast, ready to accept optimized solutions that strengthen cybersecurity (for cloud computing). Since the beginning of 2000, eDiscovery practitioners have developed skills and techniques that can be applied to information governance. Organizations can apply the lessons learned from eDiscovery to accelerate their pace toward a sophisticated information governance framework.
The Information Governance Reference Model (IGRM) illustrates the relationship between key stakeholders and the Information Lifecycle and highlights the transparency necessary to enable effective governance. Specifically, the update IGRM v3.0 emphasizes that Privacy & amp; The Security Officer is an important stakeholder. This topic is discussed in an article entitled "Better E-Discovery: Unified Governance and IGRM", published by the American Bar Association.
See also
- Information stored electronically (Federal Rules of Civil Procedure)
- Data excavation
- Invention (legal)
- Information governance
- Data retention
- Telecommunications data retention
- Initial case assessment
- Legal management, risk management, and compliance
- File hosting service
- Machine Learning
- forensic search
References
External links
- Federal Judicial Center: Material on Electronic Discovery
- American Bar Association article on eDiscovery
Source of the article : Wikipedia
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