eDiscovery is a software used in US and UK litigation cases to collect, review, analyze and produce in order to respond to an evidence request by the court

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History

2005 is often stated as eDiscovery’s birthday: the year when the Federal Rules of Civil Procedure (FRCP) were amended by the US Supreme Court with a category for electronic records. This brought eDiscovery to the legal market before anyone was aware of the term “legal technology.” eDiscovery was one of the very first legal tech tools.

Before technical inventions conquered legal work, during American discovery trials, lawyers fought their way through physical papers in order to respond to requests for evidence. With the amendment to the FRCP, different eDiscovery software solutions entered the market.

Aside from changes in the requirements for legal work, society began using electronic communications more in general. Over the course of the last 16 years, more correspondence was transferred into the cyber world: Alongside email, chat programs, blogs and social media have become popular.

From the private user’s point of view, virtual communication is easy, fast and flexible.

For an investigator seeking information, putting email under the microscope reveals more information than just reading a physical letter. Email reveals who sent the message to whom, who received it in copy, when it was sent and when it was received. In contrast, if you have only the physical letter, only the content is searchable. In addition, the metadata of an electronic document may reveal yet more information, such as where it was created, at what time, who else worked on that document after the creator, etc. And by following the thread of an email conversation, valuable information is detected about the participants in the conversation.

EDRM

In 2005 the Americans George Socha and Tom Gelbmann invented the EDRM (Electronic Data Reference Model), which describes and visualizes the lifecycle of an eDiscovery document. The different stages and steps are named, and a standard for eDiscovery was established.

Current use

US and UK attorneys mainly use eDiscovery in litigation cases. The acceptance of the use of eDiscovery in court cases is high and natural. During an eDiscovery-supported trial, the parties and the judge agree on the scope of the investigations, e.g., custodians, search terms and date ranges. Any electronically stored information (ESI) that might be relevant to the case must be preserved. Further, the parties decide whether machine learning features are allowed to support the review. In eDiscovery, this machine learning is named either technology-assisted review or predictive coding, and it is used for finding relevant documents in a review case. The benefit of machine learning in a review process is that users train the system to identify relevant information. After “seeing” a certain set of reviewed documents, the system recognizes similar documents and prioritizes these. The user may then classify the documents by their content and can provide feedback to the system for the next round.

To fulfill privacy requirements, the filter and search options detect private conversations and information, preventing their review or classifying them as private information and filtering them out after the review. The tools also offer redaction options in order to prevent such information – e.g. private and personal information or trade secrets – from being revealed to the public.
eDiscovery tools have very powerful engines that are capable of dealing with undefined and large amounts of data. Often no one knows what the processed data contains. During processing, the data is deduplicated and the OCR and meta data are read. As a result, not only can the data be sorted and filtered by content, but the metadata can be involved, adding more analysis options. For instance, information within the metadata can be put in relation to other information.

While eDiscovery is the tool of choice in the American litigation process, the possible applications in Europe are primarily within the field of internal investigations. With the options of searching, retrieving, analyzing and reviewing information, the possible applications are enormous. Many antitrust and white-collar law cases have been dealt with using eDiscovery. It is also in use at various German public investigation authorities such as the Federal Criminal Police Office, the Office of the Federal Public Prosecutor and by the tax authorities. Due to its capabilities, eDiscovery has also been used for investigative journalism: The Panama Papers, for instance, were analyzed with the eDiscovery software Nuix Discover.

These investigations typically have a high focus on correspondence in order to detect misconduct, and thus focus mainly on email and attachments, calendars and chats. But most eDiscovery tools are able to deal with up to 1,000 data formats and search options such as syntax and Boolean searches. They offer the option of transferring documents into other formats, can transcript audio files and even offer in-tool translation along with the visualization of data and machine learning options mentioned above.

Future use

eDiscovery can solve many legal and investigative problems, but there are undoubtedly other challenging constellations where its use could be beneficial. The capability of dealing with huge amounts of unsorted data offers many answers to questions that have not been asked yet.

At reThinkLegal, considering the way tools sort data in regard to the information in content and metadata made us think about other use cases in which the challenge lies in finding other discoverable information. After all, relevant information is buried not just in email correspondence and social media, but also in contracts, protocols, pictures and formulas, among other sources.
The manual effort involved in going through data physically and the work of so many jurists to find the information they are looking for has decreased with eDiscovery, and the capability of analyzing data features has tremendously increased in the last couple of years.

The analysis options reveal the dimensions of time, words and people, and set these in relation to each other – e.g., who talked to whom, which words were used the most within which time frames, and so on…

Below is a summary of a few use cases outside the typical scope of eDiscovery where the software can be put to great use. Other cases might also benefit from eDiscovery software.

Insolvency procedures

In German insolvency proceedings, the liquidator has a budget of time and money for liquidating the company. The monetary budget stands in relation to the value of the company. The liquidator’s earnings depend on the value of the insolvency assets. Increasing the company’s value therefore also increases the earnings of the liquidator.
Typical assets that are overseen in a hasty insolvency can be patents and trademarks. Using technical assistance to scan through the company’s contracts might reveal hidden assets.
The traditional use of eDiscovery to scan emails is not only useful during internal investigations but also in finding grounds for avoidance in insolvency proceedings and helping to reveal incorrect behavior by responsible employees.

Contract management

Many legal tech tools have focused on putting together contracts as well as organizing them and even redesigning the typical contract.

Our clients have approached us with the question of how to deal with the numerous contracts needed for their real estate. Commercially used properties need to fulfill the legal requirements of building maintenance as well as contractual obligations towards tenants.

After reducing the number of relevant documents, we start sorting the documents by topic, such as property, content or date range. It is also possible to add laws and regulations and put these in relation to the identified documents. The property manager is now able to confirm the relevance of the documents found, to use the coding panel and, in this way, extract information manually, as well as adding an external solution via API and extracting the retrieved information automatically.

Retention and deletion obligations

Another powerful use of eDiscovery concerns claims for information by employees. Under the new data protection law, employees and former employees have the right to receive notice of the information the employers have stored about the employee. Given the “right to be forgotten,” employers must fulfill requests regarding stored information and possibly to delete stored information. Many employers are not able to fulfill requests easily or on short notice.

By putting all the potentially relevant information in an eDiscovery tool, using it to search through the files and manually checking on the filtered information, the employer will be able to answer questions on the information the company holds about the employee.

The original file can be deleted upon request using an agent – software that fulfills tasks within other software. Agents can be programmed to find the original source of a file and delete the file forever.

In summary, eDiscovery tools are able to deal with huge amounts of unsorted data, read the metadata, set the information in relation and analyze it. Different filter and search options enable the user to identify must-see documents among a larger group of documents.
Using the coding panel, the user can classify the information manually. The user can also print out a report at any point with the selected and filtered information. This opens up possibilities for using eDiscovery tools in other legal projects as well. Whenever a jurist looks for information in digital data, eDiscovery should be considered as a solution.

anna.horn@rethinklegal.com

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