Electronic discovery (eDiscovery) is an emergent term in the legal field that refers to any electronic information that is sought for use in civil or criminal litigation. “Discovery” has always been a term used in the legal world, referring to the processes that both parties (the plaintiff and the defendant, as well as their attorneys) go through to collect information and evidence about a case. In traditional discovery, the respective parties must disclose their findings to the opposing counsel in the case, with the goal of both parties going to trial with as much information as possible.
eDiscovery is something of an offshoot of traditional discovery, referring to the external audits that attorneys will conduct to collect electronic information that relates to a case. Given the broad range of industries, businesses, and personalities that can be involved in both civil and criminal cases, the information included in eDiscovery tends to vary considerably from one case to the next. However, an eDiscovery review can include the pursuit and acquisition of various pieces of Electronically Stored Information (ESI), including but not limited to written documents, email archives, audio files, video files, websites, company records, and more.
As the concept and application of eDiscovery have grown in the legal world, numerous pieces of eDiscovery software have hit the market with the goal of making it easier for attorneys and law firms to collect, store, organize, and search ESI.
With so much information being collected and exchanged, it can be difficult for a legal party to sort through it all, determine which pieces of ESI are relevant to the case, remove documents and communications that are protected by attorney-client privilege, and send the resulting eDiscovery file to the opposing legal party in a secure fashion. Complicating the process is the fact that, in eDiscovery, file metadata must be preserved so that it can be used as proof that ESI evidence has not been altered or otherwise tampered with. The accidental deletion or modification of information found in an eDiscovery review is illegal and viewed by the court as destruction of evidence.
eDiscovery software helps to preserve both the security and integrity of ESI evidence while also making it easier for legal parties to search and review the evidence and cull any documents or communications relevant to the litigation at hand. eDiscovery software programs should also make it easy for lawyers from one legal team to download all of the information they have deemed relevant to their case so that they can easily exchange that information with opposing counsel as part of the discovery process.
The Relation Between eDiscovery and Document Management
While eDiscovery is a useful means for legal teams to learn more about their cases—particularly in an age where most communication is done online and most files are stored digitally—there are a few issues with it that people in the legal industry are all too happy to discuss. For example, in this piece from Law Practice Today, Bruce A. Olson talks about how small to medium cases often come with small to medium budgets, making it difficult for attorneys and firms to afford some of the better eDiscovery tools. Olson’s proposal is for firms to use a handful of less expensive programs to satisfy different portions of the eDiscovery review—a patchwork solution, you might say.
Similarly, one piece of eDiscovery software—called Logikcull—actually markets itself as the anti-eDiscovery, a program simple and affordable enough to give small to medium-sized businesses a fighting chance against the bigger players. On their site, Logikcull says that many “large, data-rich organizations” in the legal world will often “weaponize” the eDiscovery process to bully or overwhelm their smaller opponents. Not everyone has the same eDiscovery tools at their disposal, a fact that somewhat contradicts the idea of the discovery process as a means to “level the playing field” between the opposing legal parties before they face one another at trial.
It’s possible that document management software (DMS) could be the answer to giving small and medium-sized businesses a more affordable option for eDiscovery. While DMS tools like eFileCabinet are not technically eDiscovery software, they have many of the same functions, providing a place where a wide range of different electronic files (documents, emails, multimedia files, etc.) can be stored securely.
With an intuitive text-search function, eFileCabinet would give law firms the tools they need to assess the relevance and privilege of various pieces of ESI while the customizable organization structure of the program would make it easy to cull all of that relevant discovery information into one place. In addition, the ability to lock files to editing on eFileCabinet (or to track the audit trail of those files) would protect the integrity of the ESI and prevent evidence tampering. Finally, with advanced client portal technology, eFileCabinet would provide attorneys with a simple and encrypted means of sharing eDiscovery folders with opposing counsel over the internet.
Could DMS be the answer to fixing the inequity of the eDiscovery process? Contact us to learn more about our software and decide for yourself.