Electronic discovery is the process of collecting, culling, and reviewing data by lawyers, so that relevant documents relevant to a case can be exchanged between the parties.
The Typical UK Case
Typically there is a case between Party A and Party B; the two parties are in litigation and are required by law to exchange documents relevant to each others cases. To do this the parties involved collect their data and then read or “review” their data. Each party will normally employ a law firm to conduct the review, for their independance and skills.
Individuals, or teams of lawyers (depending on the amount of data), will look at the documents for their party and decide if the documents are relevant (responsive) or not. Once the parties, and their respective law firms, have reviewed the documents and decided what is and is not relevant, each will produce a bundle of relevant documents and exchange them with the other side.
The entire legal process, from deciding what documents to search/review, to what is relevant and how the documents are exchanged is governed by the Civil Procedure Rules Part 31.
The World of Paper
Traditionally lawyers would collect the companies paper documents, sort them, and then review them. Putting the documents in piles of relevant, non-relevant, and confidential. The ones that were identified confidential would be photocopied and the critical passages redacted (blacked out) creating more paper. Once all the relevant files were identified these would be photocopied again and passed exchange with the other side. This task of reviewing data was a huge process, and very manual and prone to errors.
The rise of email
When electronic documents first came into existence the problem did not get any easier as these electronic documents would also be printed out so they could be reviewed as well.
As memos, accounts books, FAXs and reports have given way to documents, spreadsheets, emails, and PDFs, the idea of printing large volumes of electronic data became more and more frustrating. In addition to this the amount of documents available to a reviewer grew, as there was no need for disposing of bulky paper on a regular basis.
If an individual writes 50 emails a week, and recieve a 50 emails each week, it is fair to say that the invididual has 100 emails in his mail box in 1 week, and 400 in a 4 week month. Therefore, assuming the rate continues and there is no deletion, there would be 4000 email in the individual mail box in ten months (assuming 4 weeks per month).
With development of backup technology the number of document available became far greater than ever before. If the user mentioned above has a complete back up of his mail box every month then number of emails available will be truly huge. In fact if all of the backup tapes were extracted the total data available would be 26,000 emails, rather than 4,000. See calculations below
|Data on Backup|
|Total on Backup||22000|
|Total on Live Email||4000|
|Total Emails Available||26000|
For this reason the volumes of data increased massively and effectively prevented a manul review of data. This resulted in need for electronic discovery.
(the example give is purely to assist in calculations in in this scenario processing the backup data would be redudant as everything is on the live mail box)
Paper Discovery is Dead Long Live Electronic Discovery
Electronic discovery is, simply put, highly detailed document management. It collates all of the documents together, into a single location, known as a “Review Platform”, and then allows one, or many, people to review the documents simultaneously. As the data is held electronically files can be filtered, searched, and culled down in numerous different ways, to allow a rapid review of the documents. In addition to this the documents, and actions on the documents e.g. who reviewed what, what searches, who looked at it, etc, can be fully audited. Production and exchange of of relevant documents, can now be done all electronically.
The benefits of reviewing electronically, rather than by paper are huge. The automatic searching and filtering of documents, working collaboratively from anywhere on the world (most review platforms are online), moving data between teams and redacting without the need for photocopying.
Culling: Filtering,, Searching and De-Duplication.
The subject of filtering, searching, and de-duplication is a huge area, and could easily keep a couple of PhD students studyingfor a while. But, in brief electronic discovery can allow for the following:
- Filtering: Electronic Documents can be quickly filtering by date. Documents in (our out of a date range) can be brought in, or out, or review. Allowing the reviewers to only focus on what is relevant. On the average PC or Server there are thousands of junk file, DDL, EXE, .HLP file, none of which are relevant to the review – these can be filtered out of the data set quickly and easily.
- Searching: If the review team know what they are looking for they can use keywords to rapidly remove all of the documents without the keywords, and focus the search.
- De-Duplication: When working with servers and backup tapes there is likely to be a very high number of duplicates – two documents that are the same but stored in different locations. By using de-duplication methods the reviewers only need to see one copy of a file, radically reducing the amount of data to review.
By combing the culling and review platfoms the process of discovery is now feasible in the modern world, compared to old fashion method of reviewing by paper.