E-Discovery continues to be a key topic of interest for many records managers. On a daily basis, I see and hear e-Discovery-related discussions on RM listservs, in magazines and at events. I hear about companies spending millions of dollars on the e-Discovery process or being sanctioned a huge amount for spoliation.I must first state that I do not have a legal background and that my knowledge of the subject matter is limited. However, I do find the topic fascinating, as it often reveals the frightening consequences of poor records management adoption by organizations.
In this blog post I have attempted to clarify some aspects of e-Discovery for RMs and share some useful resources.
e-Discovery in Civil Law: Where Does It fit?
e-Discovery or (electronic discovery) is the process of collecting, preparing, reviewing and producing electronically stored information (ESI) before trial. The term e-Discovery was coined because ESI started to make up a big portion of the discovery process (and a big portion of the cost!), and its complexity is far greater than paper-based records. This is a natural progression; over 90% of records being created are in electronic form.
In civil law, the discovery process takes place after: (Step 1) a complaint/petition is filed in court; (Step 2) a complaint/petition is served on a defendant; and finally, (Step 3) the defendant's response is filed in court. (After Step 3, the complaint can either be dismissed or settled.) After the discovery process, a trial takes place, followed by the court judgement.
Electronic Discovery Reference Model (EDRM)
EDRM is the leading resource on e-Discovery and information governance. The website publishes and consolidates reliable, well researched information from a variety of industry specialists. Records managers wishing to familiarize themselves with e-Discovery should consult EDRM.
The e-Discovery process is often an arduous and can cost millions of dollars. One GB of information involved in the process can cost tens of thousands of dollars. Here's a flowchart that breaks down the process. This may also explain why it costs so much to produce ESI!
While records managers are not to replace lawyers in this, and they are certainly not expected to understand every aspect of the process, they do need to know how they can support the organization in the process.
The EDRM Talent Task Matrix clearly outlines who is doing what in the discovery project. Divided by the EDRM stage, the responsibilities are laid out by roles such as Attorney, Paralegal, Document/Data Analysis, Records Management, Information Technology and Review Quality Control Lead. Read the tasks assigned to records managers and consult related resources from the website.
Download EDRM Talent Task Matrix XLSX Spreadsheet.
Another useful guideline on the EDRM is the EDRM Search Guide, version 1.17. Read Chapter 4 Search Framework to familiarize yourself with the search process.
Many positive changes are happening in the e-Discovery world. Recently, the International Organization for Standardization (ISO) approved the development of an international standard for e-Discovery. Predictive coding/search technology, which helps narrow down discoverable content, is also gaining attention among lawyers and judges these days. The newly released SharePoint 2013 includes upgraded e-Discovery and in-place hold capabilities.
I hope you find this short article useful to you. In future, I plan to write about e-Dicovery and the Sedona Conference(R), as well as some basic related legal key words records managers might find helpful to learn.