Electronic Discovery (E-Discovery) as a practice is becoming more critical in the Litigation portfolio of an Organization in the recent times due to the increased regulatory requirements, data privacy issues and legal disputes inherent to business.
Discovery in Legal terminology refers to a process in a Civil Litigation by which relevant information is sought, acquired, processed and presented to the required parties. Electronic Discovery is the discovery of the Electronically Stored Information (ESI) of an Organization. The ESI of an organization can be in multiple forms such as emails, instant messages, word processing documents, spreadsheets, shared drive data, business applications data, voice data, media files, voice recordings, data on cloud and virtual environment and various other forms of unstructured data.
The Process of Electronic Discovery has multiple phases such as Information Management, Identification, Preservation, Collection, Processing, Legal Review, Productions, Analysis and Presentation. The Electronic Discovery Reference Model (EDRM) serves as a reference in understanding the multiple phases and their relevance to e-discovery.
What are the benefits of e-Discovery?
Since majority of the Organizations’ data is created, stored and transferred electronically, having a robust and defensible mechanism to identify, collect, preserve and present relevant information is increasingly becoming important. Also, implementation of an effective e-discovery strategy is vital to the long term viability of an organization given the regulatory, compliance and litigation requirements. Below are some points that indicates why e-discovery is important.
- To meet Regulatory compliance (SOX, HIPAA, FISMA, FCPA, Data privacy laws etc.)
- To Respond to or defend a Litigation
- Information Management – Data Records Management or Record Retention Policies
- Litigation preparedness
- Investigating Internal Frauds or Compliance issues
- Managing Migration of data
- Effective Data Management (identify and remove redundant/duplicate data)
Failure to comply with regulatory requirement or failure to preserve or present the requested data have often attracted severe sanctions apart from causing reputational damage to companies. Below are some examples where strict sanctions were imposed on companies for not complying with or not preserving/providing the requested information.
Apart from the regulations and policy requirements the companies also should be aware of the legal provisions that require companies to preserve and produce relevant ESI. The FRCP (Federal Rules of Civil Procedure) of USA has several guidelines and instructions related to e-discovery. Below are some important FRCP Provisions.
Critical factors for a successful e-Discovery
The following factors account for or a successful e-discovery program
- Well-structured Information Management
- Data retention and retrieval policies
- Good co-ordination between E-Discovery, IT and Legal teams.
- Following forensically sound preservation and collection processes
- Maintaining chain of custody and other relevant documentation
- Following best practices to preserve metadata.
- Having a good Legal Hold Management and Early case assessment plans.
- An expert witness designate who can understand the overall process and defend the e-discovery process of the organization in the court of law.
Implementing an effective electronic discovery mechanism to comply with the regulatory requirements, meet records retention obligations, prepare and respond to a litigation and also to investigate into policy violations is the need of the hour for most organizations.
Authored by Bhanu Prakash Kondapally