Stacks of boxes, reams of paper, wads of paperclips and rubber bands…these are olden days of discovery. Enter: the personal computer. Everything has changed; well, almost everything.
The way we deal with litigation documents has been transformed from one end of the spectrum to the other. From the creation, to the storage, to the production of documents, electronic information governance, often referred to as IG, has streamlined the process. The term covers policies, procedures and processes to manage information. It is used to minimize legal risk.
E-discovery assists firms with IG by making documents searchable by keywords. There’s a host of elements that comprise e-discovery, and it’s the responsibility of both counsel and their clients to gather information responsibly and quickly. And with the advent of electronic documents, while more efficient and cost effective, these elements can potentially complicate a client’s case.
Privilege is of particular importance to law firms when it comes to discovery. Certain documents, such as correspondence between the attorney and the client, should not be produced to opposing counsel. Other correspondence and documents, like e-mail drafts, may also be privileged information. Because of the amount of documentation that is generated in digital form, privileged information could easily be inadvertently produced. Reviewing electronically stored information and other information takes time and money, and could slow down the discovery process, although arguably take far less time than a manual review.
Proportionality requires that discovery is kept in line with the established burdens of discovery, which are based on the amount in controversy, the complexity of the issues, relevance and the parties’ resources. The advent of numerous proprietary software offerings, as well as more tech-savvy legal attorneys and support staff, has made the process more easily palatable for small and large firms alike thus honoring the “parties’ resources” element of the requirement.
Social media and blogs are everywhere, and a part of the average person’s life. Over 800 million people use social network sites for about 7 billion collective minutes per day -- and that means that people may inadvertently post inappropriate, and potentially legally detrimental, comments. Even if a person keeps his or her profile or page private, it’s possible that the posts could be accessed later and, depending on the information in the posts, could be considered privileged information that has lost privilege status.
While the Stored Communications Act protects the privacy of a user by prohibiting the service provider from disclosing the information, information posted on a profile, whether public or private, could still be discoverable. It’s the attorney’s job to wade through pages -- perhaps thousands -- of social media documentation to determine whether the information contained therein is privileged.
E-discovery programs can help attorneys locate privileged information and avoid inadvertent production to opposing counsel. The programs also help attorneys and paralegals organize documents in preparation for discovery and use as evidence.
Once the documents are requested and production starts, documents are scanned into digital format. Each document can then be assigned keywords, and be flagged as privileged or discoverable. Likewise, electronic discovery can be entered into the program for keywords.
E-discovery programs can also help attorneys locate documents. Programs can flag documents as privileged, permitting an attorney to complete a short review of the document. This can save an attorney time in the review process, and can help ensure that a privileged document isn’t produced to opposing counsel.
An e-discovery program also helps sort discovery so that attorney reviewers can review documents for the subjects on which they are familiar. This can lead to faster reviews of documents for trial evidence purposes and shortens the time it takes to prepare evidence for trials.
Emails and other digital documents can be scanned by subject, keyword, name and other methods to increase accuracy, relevance and protection against inadvertent production of privileged or protected information. Scanning the documents and assigning keywords help determine if the document is privileged or even useful for discovery or trial purposes once that document reaches the review stage.
E-discovery can help or hinder litigants, but with the help of discovery management programs, e-discovery can be a tool to more efficiently navigate litigation. Paper discovery documents can also be managed much quicker and can be integrated with e-discovery to more efficiently manage the litigation lifecycle.
So for the e-discovery attorney, it’s goodbye paper cuts, hello screen time!
Editor's Note: Additional articles on e-discovery that might interest you include:
- Information Management 2011: Analytics, Business Intelligence, BPM by David Roe
- How Governance and Risk Management Failures Contributed to Fall of Major UK Bank by Norman Marks
- The Best Way to Improve Business Performance by Deb Miller