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An Appraisal of E-Discovery in the Digital Age

The legal industry is infamous for being technologically-challenged and unhurried in embracing changes and new practices. However, the past 20 years have brought a new digital age in which the legal domain is witnessing a technological evolution. One such revolution in the legal space is the introduction of electronic discovery.
Written by:
Shivi Gupta
Published on
24-Jul-18

The legal industry is infamous for being technologically-challenged and unhurried in embracing changes and new practices. However, the past 20 years have brought a new digital age in which the legal domain is witnessing a technological evolution. One such revolution in the legal space is the introduction of electronic discovery. 

Electronic discovery or e-discovery is the electronic aspect of identifying, collecting and producing electronically stored information (ESI). ESI encompasses emails, documents, presentations, voicemail, audio- video files, social media and websites. E-discovery also helps in securing and investigating viruses, malware, spyware, and trojans.

As the data is identified by both the sides of a litigation and relevant documents are submitted, the information incorporated in it cannot be deleted, changed or destroyed. The purpose of e-Discovery is to assemble a colossal amount of evidence for a legal procedure from the available data. 

Electronic Discovery utilizes processes like predictive analysis and coding to reduce the amount of data required by lawyers. It helps lawyers and in-house legal counsels in extracting a large amount of content in a short span of time and eliminate redundant data, thereby reducing the effort and cost that was required in during this task manually. 

The process of e-Discovery broadly includes the following phases: 

  • Preservation: The Preservation phase is where the duty to preserve evidence begins. Experts argue that preservation must begin as soon as litigation is anticipated.

  • Collection: During this phase, the ESI is acquired digital forensics, pattern and trend identification and predictive analysis. 

  • Processing: In this phase, collected ESI is indexed, searched, and singled out on the basis of necessary requirements for litigation to reduce the number of irrelevant documents before the next phase starts. 

  • Review: During this phase, ESI that fulfils the filtering criteria from processing phase is reviewed by lawyers and in-house counsels for responsiveness and relevance to the litigation.

  • Analysis: Analysis can be a powerful tool used to identify relevant documents or potential keywords that may not have been found using a traditional manual keyword search. 

 

As any data including text, images, calendar files, databases, spreadsheets, audio files, animation, websites, computer programs, etc. serve as evidence in the process of e-discovery, identifying relevant evidence in a litigation is much more swift and efficient, with almost no room for error. Cross-border litigation has become much simpler with e-discovery as identification of evidence is completely automated.

The processes involved in e-discovery are complex as they involve a large volume of electronic data produced and stored. Unlike hard-copy evidence, electronic documents are dynamic and contain metadata viz. time-date stamps, author and recipient information and file properties. 

E-discovery is a constantly expanding discipline which goes beyond the sphere of technology. The process generates multiple issues involving the legal, political, personal and privacy issues which are otherwise difficult to dissect.

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