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Electronic Discovery Risks, Challenges and Procedures

Posted by Protiviti KnowledgeLeader on Mon, Jul 17, 2017 @ 09:10 AM

Electronic discovery (eDiscovery) refers to the process of searching, locating and securing electronic data for the purpose of using it as evidence in a legal case.

This is obviously a hot topic right now in both headlines and in board rooms. Nearly every day for the last year there has been a story involving electronic data being sought, secured and searched. Electronic data as a format is well-suited to examination as digital data can be electronically searched and analyzed with relative ease compared to paper documents. The nature of electronic data makes forensic practices and procedures extremely important, as they can be called into question as much as the data itself.

There have never been so many venues and devices on which electronic discovery can take place. Today, we have to consider not just desktop and laptop computers, but also phones, servers, file or email servers, social media and even mp3 players.

The Electronic Discovery Reference Model and eDiscovery Risks and Spends graphic depict the process and integration of law and IT personnel:

ediscoverygraphic1.png

 

eDiscovery: Risks and Spends

ediscoverygraphic2-1.png

Other challenges associated with eDiscovery include:

  • Volume
  • Lack of one silver bullet search method
  • Distributed data
  • Inexperience and poor planning
  • Multiple sources
  • Unique corporate language and taxonomies
  • Emerging technologies (social media)
  • Structured and unstructured ESI

 

Sample Roadmap to Meet and Confer:

Pre-Complaint Investigation

Complaint Filed

Meet & Confer

Scheduling Conference

Discovery
  • eDiscovery impact evaluation
  • Preliminary ESI analysis
  • Early case assessment
  • Communication analysis of key custodians
  • Timeline and key event mapping
  • ESI preservation advice
  • Forensic Imaging
  • Scoping/interview of IT personnel in internal investigations
  • Records policy status
  • Standard IT process identification
  • Preparation of IT questionnaire
  • Litigation preparedness gap analysis

 

 

 

 

 

 

  • Litigation hold definition
  • Advise and implement litigation hold systems
  • Scope/boundary determination
  • Cost & risk quantification
  • Business ops impact assessments
  • Early case assessment
  • Forensic imaging
  • Data mapping
  • Data queries and sampling
  • Accessibility evaluations
  • Cost to comply studies
  • Evaluate document review capabilities and strategies of both sides

 

 

  • Prepare and develop strategies for 26(f) Conference
  • Identify cost shifting issues and draft solutions
  • Key custodian identification and time frames of interest
  • Provide supporting documentation on key term results
  • Develop questionnaire
  • Determine strategies for protecting privilege
  • Provide assistance at 26(f) conference
  • Proposals for production formats and technology platforms
  • Preparation for Rule 16(b)
  • Assist in drafting production and search protocols
  • Develop reasonable time lines for ESI discovery
  • Privilege agreements assistance
  • Productions/findings summary

 

 

 

 

 

 

 

 

 

 

 

 

  • Forensic capture
  • Advise & manage first pass technology platforms for efficient review
  • Assist in drafting response to discovery requests
  • Advise on interrogatory language
  • Email/eFile processing & analysis
  • General/advanced conceptual evaluation and clustering
  • Manage large scale hosting
  • Accessibility evaluations
  • Data queries and sampling
  • IT deposition preparation
  • IT personnel response critiques
  • Draft summary analysis of findings
  • Prepare defensibility memorandum/expert reports

As this is an evolving field, it goes beyond the types of technology to concerns of practice, politics, security and other issues that may arise in the coming years.

Are you prepared? Check out the topic pages on KnowledgeLeader for the following terms:

Be sure to also explore our eDiscovery Practices and Procedures Guide, a 33-page PowerPoint guide to the topic that further explores the challenges, risks and spends involved in eDiscovery.

Topics: laws & regulations, IT audit, IT security, IT controls, investigations/forensics, eDiscovery

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