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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.