In today’s information age Information Governance is essential to be prepared for eDiscovery. People are hungry for information and submit Freedom of Information Act (FOIA) request at a startling pace. We live in a very litigious age and the only way to be prepared for eDiscovery request whether via FOIA or a lawsuit is by having a strong Information Governance foundation.
The first step in the eDiscovery process is identification. You can’t place a legal hold on what you haven’t identified. To be able to identify relevant Electronically Stored Information (ESI) you need to develop an identification strategy and plan, establish the identification team, identify potentially relevant sources of ESI and certify sources of potentially relevant ESI. This step isn’t just about identifying sources, but also identifying custodians of information. Having a data map is essential to identify ESI.
After ESI has been identified the second step is preservation. This is the act of placing a legal hold and halting any destruction of ESI that has been requested. To mitigate risk a preservation plan should be put in place with a defensible audit trail and the plan should be validated with quality control. Spoilation of evidence occurs when ESI isn’t preserved and it is intentionally or recklessly destroyed. An organization can face sanctions if spoilation occurs.
Following preservation is the collection phase. Preservation stops the destruction of information and collection is the transfer of information to legal counsel. Preservation and collection works hand in hand. The purpose of preservation is that information can be collected. If information is collected without preservation taking place then all of the request information will not be available and an organization can face massive legal troubles.
Once data is collected and acquired by either FOIA that is fulfilling the request or legal counsel it now needs to be processed. Processing involving looking at the universe of information submitted and reducing the volume down to only what is necessary and converting it to a usable format for review and analysis. Example of processing ESI is removing duplications, coverting to PDF or TIFF, addings Bates numbers. Many times text will be extracted and OCR’d for advanced analytic tool to perform an efficient review of information.
The purpose of processing information is so that it may be reviewed and analyzed. Review and analysis are the two phases that come after processing information and both involve evaluation information for responsiveness to discovery requests and for privilege. as well as content and context. Review brings to light the information in ESI to give counsel facts and strategies for when they are in court. Analysis is crucial to review as it helps to interpret documents and information so that only relevant ESI is reviewed and non pertinent information is culled.
Production is taking the ESI that has been processed, reviewed and analyzed and producing a product that can be given to the opposing counsel or FOIA requester. Specifications must be agreed upon for how ESI will be delivered and it is typically delivered with accompanying metadata. ESI can be delivered in its native format format, near native format (best for databases and e-mail), Image/near paper format (converting to PDF or TIFF) or paper/hard copy format. Different forms of production are appropriate for different types of ESI so typically ESI will be produced in a combination of formats.
The last function of eDiscovery is Presentation. Typically in litigation ESI is presented before a disposition, hearing, trial etc. If Information Governance is the process, a defensible presentation is the end product. At this point in the eDiscovery Reference Model records managers and IT have pretty much turned the process over to the lawyers to present information in court. You can go here to learn more about the EDRM.