Electronic Discovery

What is Electronic Discovery?

Electronic discovery (e-discovery) software is used to identify, preserve, collect, review, and produce electronically stored information (ESI) that is potentially relevant to litigation or government investigations. ESI is information stored in an electronic medium and retrievable in perceivable form.

ESI comprises all current types of computer-based information and encompasses future changes and developments. It may be found in databases that do not relate to hard copy materials. ESI does not include traditional writings stored solely on paper or another tangible, non-electronic medium.

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Who uses e-discovery software, and why?

E-discovery software is most commonly used by law firms representing parties in civil litigation to identify, preserve, collect, review, and produce potentially relevant ESI. In civil litigation in federal and most state courts, parties may obtain discovery regarding any nonprivileged matter relevant to any party’s claim or defense and proportional to the needs of the case.

Another use of e-discovery software is by organizations and government entities to identify, review, and produce large amounts of data in response to legally authorized requests. Companies must respond to government investigations, answer subpoenas, and address data subject access requests (DSAR) under privacy laws. Government agencies must timely respond to freedom-of-information requests and answer other public inquiries.

Entities can also use the software for internal investigations and to meet various data management needs, such as due diligence requirements in mergers and acquisitions and other significant transactions.

What features does e-discovery software include?

E-discovery software has modular components that address all or part of the Electronic Discovery Reference Model (EDRM). The EDRM models the e-discovery process from the initial identification of ESI to its preservation, collection, review, and production to an opposing party. The software can include ESI processing modules to identify and classify ESI and functions to place legal holds on information to protect it against inappropriate modification or destruction. E-discovery software can also present ESI in native and non-native formats at depositions, hearings, and trials.

E-discovery software in the LawNext Directory includes features for:

  • Legal hold and issuance tracking.
  • Legal hold templates.
  • Audit trails.
  • Collection and preservation.
  • ESI processing.
  • ESI review.
  • Early case assessment.
  • ESI analytics.
  • ESI production.
  • Technology-assisted review (TAR).
  • Foreign language translation

These features require related technologies for document processing and exhibit and litigation management, including but not limited to optical character recognition to index image-based PDF files, database management tools, full-text and metadata search functions, Bates numbering, and collaboration tools for document review.

How can lawyers and law firms use e-discovery software?

Lawyers and law firms can use e-discovery software on a case-by-case basis to timely satisfy discovery requirements for clients who are involved in discrete litigation or under government investigation. If the client is a company under a constant threat of litigation or government investigations, consider an annual software license to use it on-demand or subscribe to a managed service (see below). You can apply the modular software for many data management tasks and even use its identification and collection functions for information governance to mitigate the risks and costs of e-discovery.

Are there risks for law firms or their clients in using e-discovery software?

Attorneys and their clients have significant responsibilities to correctly identify, search, collect, and produce ESI to comply with the Federal Rules of Civil Procedure and state rules of civil procedure. Attorneys and clients must work together to understand how and where electronic documents, records, and e-mails are maintained and determine how best to locate, review, and produce responsive documents.

Under several theories, courts and government regulators impose sanctions for discovery abuse by parties and attorneys for intentional deception, negligence, purposeful sluggishness, and reckless disregard. Courts and government agencies will not accept technological ignorance from clients or attorneys as an excuse for delaying or ignoring discovery requirements or producing document sets that are inadequate or unresponsive to the litigation or investigations.

Should a law firm select all-in-one or a-la-carte e-discovery software?

Most e-discovery providers offer all-in-one software, an end-to-end system from ESI identification to production. End-to-end systems are modular, with various modules aligning with the EDRM. The modules are often productized and can be licensed separately or all together. Most vendors offer separate modules to process, assess (early-case assessment), review, and produce ESI. Vendors also provide data analytics to analyze ESI and artificial intelligence (AI) tools. One AI tool is Continuous Active Learning — a TAR product that prioritizes data for review from the most to least relevant.

Generally, law firms should choose a vendor with an end-to-end system. Once ESI is processed, it is most efficient to use the same vendor to review and produce the data. Otherwise, you must transfer the data to another platform, which can take time, undergoing conversion and further processing.

Should a law firm choose on-premises or cloud-based e-discovery software or an e-discovery managed service?

Cloud-based e-discovery software-as-a-service (SaaS) can meet or exceed the reliability, performance, and security requirements of on-premises software. Small and midsized organizations use the processing and computing power of e-discovery SaaS to ensure timely responses to e-discovery inquiries. Organizations of all sizes reduce their total cost of ownership in e-discovery software by using SaaS.

Cloud computing resources expand to meet demands, such as raw processing power to identify and classify ESI in increasingly large data sets that can exceed terabytes of data. E-discovery SaaS routinely connects to cloud-based data sources, such as Microsoft 365, Google Workspace, and file-sharing services, such as Box and Dropbox, to ingest and process custodial data

Using cloud-based e-discovery software reduces the total cost of ownership. Cloud software requires no capital expenditures (CAPEX) and maintenance on local computers to run the software. It relieves organizations of the administrative burden of supporting, upgrading, and patching on-premises servers and complex e-discovery software. The user experience from an e-discovery SaaS is like an on-premises system, but users get immediate access to the software’s latest features and security updates in the cloud.

On-premises e-discovery. Consider on-premises e-discovery software if the company needs to meet stringent client data security and privacy requirements or integrate with legacy systems that SaaS cannot access. The organization must have sufficient IT budget and resources to support an on-premises CLM deployment.

E-discovery managed service. An e-discovery managed service is a long-term relationship, generally three years, with a service provider who supplies all discovery software and services from ESI processing to review and production. A managed service provider can host ESI for review and staff the review with qualified attorneys.

If your law firm or legal department does not have access to appropriate technology, the personnel to operate it, or attorneys to review ESI, consider an e-discovery managed service. You should also consider a managed service if you routinely hire outside counsel for e-discovery on a case-by-case basis. The selection process is time-consuming, and the switching costs to different providers can increase e-discovery costs and response time.

What should a law firm expect to pay for e-discovery software?

Vendor pricing models can vary depending on whether you deploy the software on-premises, use a hosted version in a private or public cloud, or opt for a managed service. Vendors generally charge on a per-user or matter basis with possible additional per gigabyte costs to upload data for processing, host it for review, and store it in the cloud. For example, an end-to-end system like Logikcull starts at $395 per matter per month with an added cost of $25 per gigabyte uploaded. The pricing includes unlimited users, data storage, and downloads.