E-Discovery Technology Challenges and Solutions
Today's legal environment is very complex. Attorneys are faced with myriad challenges to effectively and efficiently support the digital demands associated with a growing number of cases. Many of these challenges are created by the rapidly advancing technologies in both the corporate and social spheres. When the focus is electronic discovery, the technologies that create these challenges have advanced faster than the technology used to identify, collect and produce data. This creates stress, delays and expense for all parties involved. However, these stresses can be minimized by doing some simple pre-discovery planning. Considering questions like the ones below can narrow the initial e-discovery scope and increase the prospect of obtaining relevant data from the onset of a case.
What You Should Know
The first question to ask when drafting an e-discovery request is "where is the relevant data most likely to be stored for this case?" Electronic data is no longer contained in a centralized local environment. It is mobile and global! Important information can be found on local machines, networked servers, smart phones or even be hosted on the Internet. The increased use of cloud computing adds even further complexity to the process because users can potentially access and manipulate data via any Internet-connected device.
Identifying these data stores will help determine what type of process and technology can be used to obtain the data. This, in turn, keeps the expenses and requests reasonable without creating an undue burden to the responsive party.
Another question to keep in mind is the nature of the litigation and types of custodians involved. This determines what kind of data could be responsive and where it is likely to reside. For example, responsive data for a wrongful termination suit might reside in the email accounts of specific human resources employees who were involved in the termination process. Documents relative to the specific justification for the termination might reside on a specific HR file share.
Another example could be a wrongful death case. It would be important to identify data stores containing information related to the specific triggers identified as the cause of the death. If an individual died as a result of taking a certain medication, the attorney might want to target the pharmaceutical company's servers and systems that contain communications or analysis relating to tests documenting the drug's side effects.
Once the appropriate areas and nature of targeted data have been recognized, the next question is how to process the information in those relevant data stores. A good idea is to team with an information technology specialist, either in-house or through a third party. Their expertise can be harnessed to effectively outline how to best access the relevant electronically stored information. The specialist can also advise the attorney on the complexities in searching for the data and provide recommendations how to best extract the data. Having an idea of what type of data is relevant to the case, and where to look for the data is crucial to a successful litigation proceeding.
From this perspective, it is important to ask "do we have the expertise, resources and tools to search and extract the data? Or, do we need a professional service?"
Probably one of the most important aspects of collecting electronic evidence is validating authenticity. The data must be collected in a manner that retains its original form. This makes having the right expertise important because inexperienced personnel can increase the risk that data will be inadvertently manipulated. Challenges to data authenticity can jeopardize the outcome of the litigation matter.
If a professional service is needed, choose a company that has proven litigation support experience and that has personnel whose experience and training can be verified. In many cases, those experts working on the case can be called upon by the court to submit declarations detailing activities, and in some cases are required to provide oral testimony.
Whether e-discovery is being done in-house or by a third party, having a wide breadth of technical experience is key as the e-discovery process unfolds. Having the ability and tools available to collect data from cell/smart phones, hard drives and servers, SharePoint websites, email servers and local systems is critical.
The last question to ask is what kinds of software should be employed for doing e-discovery. There are many factors to consider including: type of data that needs to be searched, locations and types of data stores, budgetary limitations, resources available, the amount of data to be processed and the time constraints.
Taking Action
There are many tools on the markets and each should be considered based on the unique characters of your case. One of the tools used by ITForensics is Sherpa Software's Discovery Attender. This software is designed to assist the attorney or paralegal in the management of data and information during the e-discovery collection process. DA is capable of searching mailboxes located on the server, personal folders files (.PSTs) and networked file shares or servers. Search results can be de-duplicated, thus reducing the amount of data required to be reviewed and stored. Other popular software tools include LAW, used for processing ESI data; Concordance, commonly used for reviewing; and the Clearwell E-Discovery Platform, a well-known tool for its early case assessment features.
E-discovery can be a stressful and complicated process. Allocate time at the onset of the litigation case to identify relevant data sources, data types, and who will collect the data in a professional manner. This will reduce costs, improve efficiency and benefit the litigation proceedings. Asking the right questions and utilizing the right technology and resources can further streamline the process and reduce stress along with time and expense.