 "e-Discovery Enhances Justice Via Electronic Evidence Access")
Marilyn Primiano, VP-Legal Services, Pangea3-Europe, discusses the details of e-discovery.
What is e-discovery and what is its purpose?
e-Discovery is shorthand for electronic discovery. Simply stated, electronic discovery refers to the discovery of electronically stored information in the context of litigation or some sort of government investigation. The purpose of e-discovery is to ensure, in the interest of justice, that information relevant to a lawsuit or investigation is not lost or overlooked simply because it is in electronic format. e-Discovery tools, such as forensics and document review platforms, enable us to do this systematically.
What are the steps involved in e-discovery?
IT expertise and legal strategy play integral roles in crafting an e-discovery process for each unique case or investigation. Generally speaking, parties must identify key custodians (individuals likely to have relevant information) and must then determine where that information is likely stored. This information is ascertained through interviews, written questionnaires, and review of company policies.
Electronic data can be stored in a variety of places including home and office computers, BlackBerry phones, video and surveillance cameras, and even cellular phones. The electronic device must then be physically located and potentially relevant information must be isolated and copied. Sometimes this is as simple as copying hard drive e-mail folders, but at other times it can involve complex computer forensics involving the restoration of corrupted or deleted files. Once the electronic information is collected, it goes for processing.
Processing involves formatting the information into readable files and performing both ‘Boolean’ and complex search algorithms to isolate certain information, which is likely to be relevant. By way of example, if the CEO’s e-mails for a three-month period were collected from a laptop, processing will put those e-mails into a program that lets us read them and make notes, and will also screen out irrelevant e-mails (daily e-mail weather updates, for example) and duplicate e-mails.
The electronic data then moves into the review stage of e-discovery, which is when each document is reviewed for relevance or for responsiveness to discovery requests. Sometimes, parts of documents need to be redacted or censored, to protect confidential or privileged information. Most of the time, notes are associated with the documents detailing salient aspects or annotating that a document isn’t relevant. In the US, review work was traditionally done by onshore attorneys but it is now increasingly performed by bright, detail-oriented attorneys in places such as India and in the Philippines.
Production is when the documents, after being collected, processed, and reviewed, are compiled and made ready for release to the other side, which requested the documents. Other documents will be readied for use as evidence in court. Production is primarily a computer-based process; however, it is driven by experts because it can be devastating to a case if someone makes a mistake and produces or relies upon the wrong documents.
The nuances of how the above procedure is conducted could comprise the differentiating factor that separates the best companies and top professionals from the rest.
What are the tools available to aid these?
The number of companies that provide e-discovery services has grown significantly in the past five years. Some companies provide services along the entire e-dicovery continuum (these steps are condensed and explained in the Electronic Discovery Reference Model or EDRM www.edrm.net ) while others focus on specific steps – either forensic data collection, filtering and processing, data hosting or document review, among others.
Two of the most respected companies in this space include Stratify and Autonomy.
Is there a judicial body in India that is supporting the concept of e-discovery for jurisdiction?
Currently, we are not aware of a judicial body that is officially responsible for supporting e-discovery, but I believe that most judicial bodies informally support the concept of e-discovery. India is a major player in global business and as such it needs to play by the same rules of justice as everyone else. That includes uncovering evidence regardless of the form it is stored in. In fact, being such a leader in IT, India should soon be at the forefront of e-discovery.
How is e-discovery beneficial to an enterprise?
The intention behind all investigations and legal disputes should be to discover the truth and for it to prevail. By broadening the collection and examination of evidence to include electronic formats, we allow ourselves access to more information and it is thus more likely for the truth to come out. e-Discovery tools allow this to be done systematically and more cost effectively, thereby giving more people and organisations access to precious electronic information.
What regulatory and compliance aspects should an enterprise keep in mind while trying to adhere to e-discovery rules?
Well, the key rule is to be careful not to delete any potential evidence once litigation or an investigation becomes likely. Beyond that, we urge companies to speak to a professional about what we call ‘litigation readiness’, which ensures that companies aren’t caught off guard about compliance once something comes up.
How long will it take before e-discovery becomes mainstream? Where is the market headed as of now?
For certain attorneys, I think it is already mainstream in their practice outside of Indian courts. If we continue to see upticks in litigation, as we have over the past year, it is inevitable that electronic discovery will become the norm in India as it has around the world, and multi-national companies involved in complex litigation will likely lead the charge. In the next five years, I’d be surprised if the Indian Evidence Act wasn’t further updated to provide guidance in e-discovery.