Electronic Discovery – A Practical Guide
Since October 2005 the Civil Procedure Rules require both parties in litigation to examine and disclose the electronic documents available to them. They are also required to ensure that any work performed is both proportionate, performed expeditiously and in a cost effective manner. In many organisations today we have found in excess of 90 per cent of all the documentation and client staff work that is potentially relevant to a litigation case to be in electronic format.
In theory it seems a simple exercise to go out collect, review and produce these documents; in practice however it can become quite a complex process. Where are these documents kept? Are they e-mails or files? Are they in databases? What IT systems are they on? Are they on the client's premises or in their control? What about system changes that has occurred over the period under review? What about outsourced IT services? What about different file types? What about password protected documents? Are files being deleted when backups occur? Are users deleting files without realising? Which of the client's 3,000 employees was involved? How do we review 3,000,000 documents efficiently?
The industry accepted method to approach these types of exercises is based on the Electronic Discover Reference Model (EDRM). The 7 basic steps to follow for performing this work are :
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Identification
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Preservation
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Collection
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Processing
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Review
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Analysis
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Production
The first step is identification. In plain English these are the 'Who? What? Where? When?' questions that should always be considered early on in the litigation process.
Who was involved in the issues? This not only covers individuals involved in the issues but also the departments they may have worked for at the time. This is important as it can start to dramatically reduce the volumes of documents and data sources that need to be considered for further review. You may not need to look at the HR department and file servers if the litigation relates to a production department issue.
What systems could the data sources have been saved on? The main systems most legal teams look at are the email and file server, however there maybe other systems that are of importance to a particular case such as accounting systems or Computer Aided Design systems. By starting to cross reference the custodians and departments, you can start to identify what potential systems and data sources those custodians had access to and used.
Today it is very possible for custodians to be in one physical location and the documents they are working on to be in another, perhaps even an entirely different country. You will need to consider that some data from certain systems may no longer be available on the current systems.
This brings us onto the last of the main questions that needs to be asked. What is the relevant period? If it is recent you may potentially only need to look at the current live IT systems. However if it goes back in time the chances are that you will need to start to look at backup tapes and archived data to extract relevant data.
The best way to document and keep track of all the information obtained is to use a data source matrix. Across the top of a spreadsheet put the relevant time period broken down into convenient time periods – we tend to use months. Down the side list out the systems, custodians and departments identified as relevant.
Only once you have a good idea of the data sources you are looking for will you be able to move onto the next steps in the disclosure process and address the issues in a proportional and cost effective manner.
