Electronic discovery

Electronic discovery (also e-discovery or ediscovery) refers to discovery in legal proceedings such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format (often referred to as electronically stored information or ESI). Electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.To be clear, the Court believes that for most cases today, TAR is the best and most efficient search tool. That is particularly so, according to research studies (cited in Rio Tinto), where the TAR methodology uses continuous active learning ('CAL') which eliminates issues about the seed set and stabilizing the TAR tool. The Court would have liked the City to use TAR in this case. But the Court cannot, and will not, force the City to do so. There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet. Thus, despite what the Court might want a responding party to do, Sedona Principle 6 controls. Hyles' application to force the City to use TAR is DENIED. Electronic discovery (also e-discovery or ediscovery) refers to discovery in legal proceedings such as litigation, government investigations, or Freedom of Information Act requests, where the information sought is in electronic format (often referred to as electronically stored information or ESI). Electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party. Electronic information is considered different from paper information because of its intangible form, volume, transience and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and that can play an important part as evidence (e.g. the date and time a document was written could be useful in a copyright case). The preservation of metadata from electronic documents creates special challenges to prevent spoliation.In the United States, electronic discovery was the subject of amendments to the Federal Rules of Civil Procedure (FRCP), effective December 1, 2006, as amended on December 1, 2015. In addition, state law now frequently also addresses issues relating to electronic discovery. Other jurisdictions around the world also have rules relating to electronic discovery, including Part 31 of the Civil Procedure Rules in England and Wales. The Electronic Discovery Reference Model (EDRM) is a ubiquitous diagram that represents a conceptual view of these stages involved in the e-discovery process. The identification phase is when potentially responsive documents are identified for further analysis and review. In Zubulake v. UBS Warburg, Hon. Shira Scheindlin ruled that failure to issue a written legal hold notice whenever litigation is reasonably anticipated, will be deemed grossly negligent. This created the idea of legal holds, eDiscovery, and electronic preservation. Custodians who are in possession of potentially relevant information or documents are identified. To ensure a complete identification of data sources, data mapping techniques are often employed. Since the scope of data can be overwhelming in this phase, attempts are made to reduce the overall scope during this phase - such as limiting the identification of documents to a certain date range or search term(s) to avoid an overly burdensome request. A duty to preserve begins upon the reasonable anticipation of litigation. During preservation, data identified as potentially relevant is placed in a legal hold. This ensures that data cannot be destroyed. Care is taken to ensure this process is defensible, while the end-goal is to reduce the possibility of data spoliation or destruction. Failure to preserve can lead to sanctions. Even if the court ruled the failure to preserve as negligence, they can force the accused to pay fines if the lost data puts the defense 'at an undue disadvantage in establishing their defense.' Once documents have been preserved, collection can begin. Collection is the transfer of data from a company to their legal counsel, who will determine relevance and disposition of data. Some companies that deal with frequent litigation have software in place to quickly place legal holds on certain custodians when an event (such as legal notice) is triggered and begin the collection process immediately. Other companies may need to call in a digital forensics expert to prevent the spoliation of data. The size and scale of this collection is determined by the identification phase. During the processing phase, native files are prepared to be loaded into a document review platform. Often, this phase also involves the extraction of text and metadata from the native files. Various data culling techniques are employed during this phase, such as deduplication and de-NISTing. Sometimes native files will be converted to a petrified, paper-like format (such as PDF or TIFF) at this stage, to allow for easier redaction and bates-labeling. Modern processing tools can also employ advanced analytic tools to help document review attorneys more accurately identify potentially relevant documents.