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Understanding eDiscovery Lingo?
For as much as people talk about eDiscovery, there seem to be no precise, concise definitions available that can truly put boundaries around the process. It becomes sort of an umbrella phrase that essentially deadens decision making from senior non-technical decision makers. For people with direct technology responsibility who have a duty to make sure senior leadership understands the high level issues, additional effort must now be made to demystify the activity.
So, let’s break down the term into its components – it’s the electronic version of the discovery process. But the term has been abused and heaped with a whole host of additional acronyms. ESI, IGP, EDD, EDRM, ECA, OCR, and TIF to name a few. There is no question that there are significant and difficult challenges to figure out in collecting, storing, reviewing, and producing electronic evidence. But throwing up large volumes of technology lingo to a degree that could provide the basis for a linguistics thesis is counter-productive at best, and at worst, is intentionally designed to add confusion to the issue.
At the center of the issue is the eDiscovery vendor. Production of electronic documents and data in litigation often requires the assistance of an outside vendor (an eDiscovery vendor) to retrieve the documents and/or data and to put them into a reviewable format. There are plenty of eDiscovery vendors ready and willing (but not necessarily able) to assist you in meeting your client’s eDiscovery needs. Selection of an unqualified or uncooperative eDiscovery vendor can be costly and detrimental to your case.
In a nutshell, the process of obtaining and reviewing electronic documents/data consists of the following stages – assessment and budgeting, collection, filtering, and formatting.
1. Assesment and Budgeting.
The costs to collect and process electronic data depends upon two factors: time and amount of data. eDiscovery vendors typically charge by the hour to collect data. Thus, knowing the number of servers, work stations, back-up tapes, and legacy systems involved is essential to budgeting the collection costs. The first step in the process is usually a conference call with someone from the client’s IT staff, your firm’s discovery guru, and the eDiscovery vendor you have in mind. Preliminary calls are necessary for the eDiscovery vendor to have adequate information to price the project.
Collection is the physical process where information is copied from the client’s various computers and data storage systems. This is often done by the eDiscovery vendor. Sometimes, clients with robust IT staffs will do the collecting as directed by the E-Discovery vendor. The collection needs to be done in such a way that it copies the data as is and does not change any of its profile characteristics such as metadata.
Data collection is broad in scope. Hard drives, disks and backup tapes are simply mirrored. After the information is acquired, the eDiscovery vendor, working with counsel, will develop a set of terms to pull out documents and data that may be relevant to the litigation. In other words searches are used to “cull” down the gross collection to a more manageable and relevant size.
After filtering, documents are either put into some type of electronic format so they can be reviewed in a litigation support database or “blown back” to paper to be reviewed manually.
Keep in mind that one thing eDiscovery is not is trial preparation. The same tool used to cull for relevance and privilege is definitely not the same tool to prepare for trial. It requires a different tool set. A different approach. Discovery ends. Even eDiscovery ends. But that’s when trial preparation begins.
Having spent nearly two decades learning AM Law 100 firms from top to bottom as outsourced office support providers, we took the opportunity with IST Discover-E to shake the traditional eDiscovery model up and see what fell out. We found a competitive landscape awash with convoluted processes, inexperienced Project Managers, cagy communication and intentionally confusing pricing menus. Here’s what we are doing about it: