[1] Electronic discovery is subject to rules of civil procedure and agreed-upon processes, often involving review for privilege and relevance before data are turned over to the requesting party.
In the United States, at the federal level, electronic discovery is governed by common law, case law and specific statutes, but primarily by the Federal Rules of Civil Procedure (FRCP), including amendments effective December 1, 2006, and December 1, 2015.
[2][3] In addition, state law and regulatory agencies increasingly also address issues relating to electronic discovery.
In England and Wales, Part 31 of the Civil Procedure Rules[4] and Practice Direction 31B on Disclosure of Electronic Documents apply.
The Electronic Discovery Reference Model (EDRM) is an ubiquitous diagram that represents a conceptual view of these stages involved in the ediscovery process.
In the United States, in Zubulake v. UBS Warburg, Shira Scheindlin ruled that failure to issue a written legal hold notice whenever litigation is reasonably anticipated will be deemed grossly negligent.
Care is taken to ensure this process is defensible, while the end goal is to reduce the possibility of data spoliation or destruction.
Sometimes native files will be converted to a petrified, paper-like format (such as PDF or TIFF) at this stage to allow for easier redaction and bates-labeling.
For example, one can arrange evidence by how it relates members of a group as a form of social network analysis.
Documents can be produced either as native files or in a petrified format (such as PDF or TIFF) alongside metadata.
Modern document review platforms accommodate the use of native files and allow for them to be converted to TIFF and Bates-stamped for use in court.
The most common are Relational Database Management Systems (RDBMS) that are capable of handling large volumes of data such as Oracle, IBM Db2, Microsoft SQL Server, Sybase, and Teradata.
This is also true in the ECM (Enterprise Content Management) storage markets, which converge quickly with ESI technologies.
Increasingly, database review applications have embedded native file viewers with TIFF capabilities.
Forensic examination often uses specialized terminology (for example, "image" refers to the acquisition of digital media), which can lead to confusion.
As a result, some data may be destroyed after a legal hold has been issued by unknowing technicians performing their regular duties.
Given the complexities of modern litigation and the wide variety of information systems on the market, electronic discovery often requires IT professionals from both the attorney's office (or vendor) and the parties to the litigation to communicate directly to address technology incompatibilities and agree on production formats.
[15] In relation to the second approach, despite self-collection being a hot topic in eDiscovery, concerns are being addressed by limiting the involvement of the custodian to simply plugging in a device and running an application to create an encrypted container of responsive documents.
Adams suggests the use of the Microsoft Deployment Lab which automatically creates a small virtual network running under HyperV.
Some TAR methods use Machine Learning Algorithms to distinguish Relevant from Non-Relevant Documents, based on Training Examples Coded as Relevant or Non-Relevant by the Subject Matter Experts(s), while other TAR methods derive systematic Rules that emulate the expert(s)’ decision-making process.
[30]Anecdotal evidence for this emerging trend points to the business value of information governance (IG), defined by Gartner as "the specification of decision rights and an accountability framework to encourage desirable behavior in the valuation, creation, storage, use, archival, and deletion of information.
It includes the processes, roles, standards, and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals."
eDiscovery—a multi-billion-dollar industry—is rapidly evolving, ready to embrace optimized solutions that strengthen cybersecurity (for cloud computing).
Organizations can apply the lessons learned from eDiscovery to accelerate their path to a sophisticated information governance framework.
This topic is addressed in an article entitled "Better Ediscovery: Unified Governance and the IGRM," published by the American Bar Association.