It is no revelation that digital data proves crucial in litigation. For businesses and customers, daily operations are mostly done in the virtual realm rather than on paper. When looking for key records or evidence, your legal team needs to be able to access information efficiently.
That's where electronic discovery comes in. It's mostly known as eDiscovery, the process of searching and analyzing electronic information to be used as evidence in a legal case. This information can include multiple formats, like text, video, spreadsheets, images, software, or even calendar files. Any data relevant to a case can be part of the eDiscovery process.
But just because we're talking about digital data, that doesn't mean the process is any easier. Searching through digital files can be tedious if not organized correctly and if you're not using the right tools. In this article, we'll dive deeper into the process, providing eDiscovery guidance so you can go through it smoothly.
Even though its definition talks about litigation, this is not the only scenario where you may encounter eDiscovery. Instead, we're talking about a process that aims to make information available to others outside your company.
Therefore, eDiscovery also applies to a government investigation, where your business has to present certain documents ranging from emails to financial statements.
The general public can also ask for certain information from you via a FOIA request. Under this act, the public can access all federal agency records (with some exemptions).
Your business needs to understand this process, which you can easily outsource fully, but it's increasingly being managed in-house.
The electronic discovery follows the rules of traditional discovery, which is the exchange of information between litigants. However, eDiscovery will have some conditions particular to it.
The base of discovery is that you should make all documents that are evidence or could lead to a piece of evidence available to the other party. Open discovery allows settlement before going to court.
In eDiscovery, the information is categorized or referred to as electronically stored information (ESI).
Since 2005, the basic framework for any eDiscovery process has been the Electronic Discovery Reference Model (EDRM). It explains the roadmap for businesses going into eDiscovery, from previous information governance to the production of evidence. Let's take a look at how it works.
0. Information Governance: why is it step zero? Because information governance is a process of its own, independent from discovery, also related to managing corporate information. Having proper information governance policies and procedures provides a solid starting point for eDiscovery.
The question isn't what to archive for eDiscovery, but what to archive for the different regulations your business is subject to. For example, you are not obliged to keep information because of the eDiscovery process. Still, you need to keep information in case you are faced with litigation, and you have to undergo an eDiscovery process.
We recommend you research and get to know these regulations to determine what you should be archiving. These could be common to every industry, as a web accessibility standard, or specific to yours, like FINRA rules for financial entities or HIPAA for healthcare websites.
Once you understand the scope and reach of these regulations, you can move on to choose the best eDiscovery software for your needs.
Multiple tools can speed up eDiscovery and make it more efficient for your team by taking care of the entire process or automating some stages.
Suppose your company is prone to be involved in litigation, and discovery is a frequent ambient for you. In that case, you may want to consider a complete eDiscovery solution. It's costly but handy to identify, collect, and reduce the amount of data needed in each case. That includes software like Veritas or LogikCull.
Another alternative is to choose tools that help with only one or some parts of the process. For example, many companies turn to platforms powered by AI technology to accelerate the reviewing stage, like DISCO.
Suppose your business can't incur such costs, or it isn't necessary. In that case, you may be able to satisfy your eDiscovery tasks through everyday software. For example, you can run a basic and advanced search on Microsoft solutions like Outlook for emails, OneDrive for cloud files, and Teams for internal messaging. They also offer an upgrade for more specific eDiscovery features through Microsoft Purview.
This method works just fine on internal communications and documents. But what happens to public online information? That means everything that your company, members of the company, or customers share regarding your company. Your website, website, social media posts, comments and mentions, reviews, and any other submission to a platform, are online assets that are constantly updated, modified, and deleted. For many regulations, for example, employee posts can be used as evidence.
Of course, you can look the post up on each platform, but what if it has been deleted? How do you keep a constant archive of everything relevant to your business that's on the internet? An alternative to keeping track of this kind of information is screenshots.
When looking to keep copies of public online information, you can trust screenshots. However, traditional screenshots won't seal the deal. You can only capture a certain part of a site instead of the entire page, losing important information like a copyright statement. Manual tasks also rely on your memory, and if you forget to capture a page, it can be lost forever. Websites and social media are constantly updating, so you can't rely on the manual screenshot.
However, an automatic screenshot tool like Stillio can be used for this purpose. Just provide the URL of the website, social media profile, or review page you want to keep and set the interval you need. It can be daily, weekly, monthly, or even up to 5 minutes, depending on how often the content is updated. Stillio will then capture full-length screenshots of those sites, and it will automatically save them on your drive.
Automatic screenshots help avoid many of the usual issues you encounter in eDiscovery:
It's important to know why eDiscovery is crucial to any organization and to understand the process in case you ever need to collect evidence. To get ready, research the regulations you must comply with and the assets you need to archive. Then, choose tools you can rely on.