Preface:
With the development of electronic communication and data storage, the litigation landscape has enormously changed in today’s digital age. The evidence that is extracted and analyzed using digital forensic and the production of electronically stored information in legal proceedings, also known as e-discovery, have become cornerstones in modern litigation. Running beside this is the enacting of legal holds, a process whereby information pertinent to litigation anticipated is preserved. Understanding the concept of e-discovery and legal holds is becoming indispensable in the pursuit of modern litigation processes, as businesses increasingly depend on electronic communication. This article will address some processes, challenges, and best practices surrounding e-discovery and legal holds, offering an understanding of their critical role within the legal system.
Keywords: E-Discovery, Legal Holds, Digital Evidence, Litigation, Electronically Stored Information (ESI), Date Privacy.
What is E-Discovery?
Discovery on its own refer for the initial phase of litigation process, where the parties in dispute are required to provide each other with relevant information and records, along with their evidence submitted.
On the other hand, E-Discovery is short for electronic discovery, where it is related to the process of discovery in litigation but in the means of electronic formats. Simply can be defined as sharing or imparting information of all communications that are exchanged electronically between parties in a lawsuit.
It concludes what is mostly known as Electronically Stored Information, or ESI. For example, ESI includes emails, direct messages, chats, documents, accounting databases, websites, or any other electronic information that could be used as evidence in a lawsuit. Moreover, such e-discovery may include “raw date” and “metadata” which forensic investigators can review for hidden evidence
Consequently, a legal hold, or litigation hold, is a notice issued to all affected personnel (custodians) communicating their legal obligation to preserve potentially relevant evidence. This may be in the form of physical or electronically stored information.
How does E-Discovery work?
The Electronic Discovery Reference Model (EDRM) provides a standardized model for e-discovery. It consists of nine distinctive stages that allow for the management and discovery of ESI during an investigation.
This model was developed back in the year 2005 by George Socha, Jr., of Socha Consulting LLC, and Tom Gelbmann of Gelbmann & Associates, considering that there were no available standards concerning e-discovery for legal purposes, specifically for recovery and discovery concerns of digital data. Presently, EDRM is being utilized today by some legal and investigative teams to guide them in all e-discovery processes and activities.
The various stages in the EDRM model include the following:
Information management and governance:
These are bedrock stages of the EDRM involving the implementation of data governance practices right from the creation to the deletion stage of ESI. The effective management of information, therefore, aims to reduce or minimize e-discovery-related costs and risks at the very outset by ensuring that data creation, storage, and disposal are made in as transparent, secure, and accountable a manner as possible. This is further brought into order within the framework of EDRM by the Information Governance Reference Model (IGRM).
Identification:
At this stage, the legal teams recognize the possible sources of pertinent ESI. This involves identifying and knowing the boundaries of the data, such as its custodian and its location. It means taking into consideration data that is or may be crucial to a case and how the treatment of that data should be handled in relation to e-discovery.
Preservation:
Legal teams preserve the data to prevent the spoilation-that is tampering or destruction-of the ESI that might become relevant. This includes different measures such as the issuance of legal holds which freezes the data and therefore prevents it from being deleted or altered, and protects it for litigation.
Collection:
ESI, after identification and preservation, is collected in a legally defensible manner in such a way that ensures its authenticity and usability through litigation. This step is sensitive and, therefore, quite crucial as any evidence should not be altered in any way.
Processing:
During this stage, captured ESI undergoes the process of being made reviewable. It involves the conversion of captured ESI into more accessible formats and filtering out irrelevant data. The idea is to reduce the volume of data without losing a single relevant ESI, organizing it in such a way that it would become easily accessible.
Review:
Legal teams, at the review step, analyze the relevancy of processed ESI. Review is one of the major steps in e-discovery that is really critical and cost-sensitive if it is done manually. Modern e-discovery these days essentially uses or works through AI-based tools set up to fasten up the time consumed in the review step and make it effective and accurate.
Analysis:
Legal teams analyze the ESI for content and context, Harmony, key patterns, discussions, and subjects related to the case. This step is absolutely necessary in developing a thorough understanding of the evidence and how that evidence supports the legal strategy
Production:
From here, relevant ESI is produced to opposing counsel or the court in the agreed upon format and on the necessary delivery schedule. The information must be delivered in a format that is usable by and defensible in the litigation.
Presentation:
The last step is the presentation of the relevant ESI at deposition, hearing, or trial. How that presentation is made can greatly determine the outcome of the case involved. Presentations in this modern age are normally done through PowerPoint slides or any other digital format for clarity and efficiency.
Why is a Legal Hold Important and Necessary in E-Discovery?
Legal hold is crucial in eDiscovery because of the preserved information, which, one way or another, would be used in court cases or investigations. This could mean evidence that needed presentation in court by an organizational entity or individual so it is legally protected, thus becoming indispensable upon discovery. This prevents severe consequences involving a person's or an organization's legal obligation pertaining to sanctions or adverse judgments. Legal holds promote fairness and justice in that they ensure the integrity of the legal process by preventing the destruction or tampering of evidence.
A few steps are important in the process of a legal hold that will assure effective data preservation. First, identification of the event that triggers the need for a hold is made; then comes the determination of the scope of the preservation duty, including identification of the custodians and sources of relevant data. In this regard, the custodians are notified and interviewed to understand the scope of the discovery, while regular data management is freezing up to prevent accidental deletion relevant to the case. Monitoring shall be done for compliance, whereas preservation efforts should be documented for defensibility. Periodically, reevaluation of the hold is done, and once the legal obligation is at an end, it is released to the organizations for returning back to normal data management.
Landmark Case: Establishing the Duty to Preserve ESI and the Role of Legal Holds: Zubulake v. UBS Warburg LLC (2003-2005).
Overview: This is a case whereby Laura Zubulake, an employee of UBS Warburg, filed suit against the company for gender discrimination and retaliation. It became clear during the course of this litigation that UBS Warburg failed to preserve critical emails and other electronic evidence relevant to the case. UBS Warburg had knowledge of the litigation but did little to implement a legal hold, thereby deleting potentially relevant data.
Considerations: The various judgments pronounced in the Zubulake case made it certain that legal holds must be issued in a timely and complete manner. To begin with, it held that when litigation is reasonably anticipated, a party should cease its routine document retention policy and initiate measures towards preserving relevant ESI. It also went on to make it amply clear that the legal counsel has to be actively involved in the preservation efforts and proper communication towards the same with all custodians is also very vital.
Impact: The rulings and opinions in Zubulake established the legal precedent for parties regarding their preservation obligations concerning ESI and have since shaped future legal holds in eDiscovery cases. As a matter of fact, the case opened the door to a wider use of more sophisticated methods of eDiscovery and re-confirmed severe consequences for non-compliance with the criteria of legal hold, while sanctions and adverse inferences are among the most prominent ones.
Final Regards:
To this end, the inclusions of e-discovery and legal holds into the litigation process represent a very real evolution by which the litigation attorney approaches evidence handling and presentation. The importance of electronically stored information preservation cannot be overstated to the degree that corporations are increasingly using electronic communication and data storage. Zubulake v. UBS Warburg LLC remains one of the landmark cases that clearly stated expectations-not just of a duty to preserve ESI but, more to the point, of a legal hold implementation. This is a reminder that timely and effective preservation efforts are not only crucial for compliance but also critical to the integrity of the legal process. As technology continues to evolve, the principles set in cases like Zubulake will still lead attorneys through the intricacies of digital evidence and even solidify the need for diligent e-discovery practices and strong legal hold procedures in today's litigation.
References:
- What Is eDiscovery? Definition, Process, Examples, & Meaning. https://www.druva.com/glossary/what-is-ediscovery-definition-and-related-faqs.
- “What Is the Electronic Discovery Reference Model (EDRM)? | Definition from TechTarget.” CIO, https://www.techtarget.com/searchcio/definition/EDRM-electronic-discovery-reference-model.
- “CHAPTER 4: LEGAL HOLD (LITIGATION HOLD).” Exterro, https://www.exterro.com/basics-of-e-discovery/chapter-4-legal-hold-litigation-hold.
- AIIM. What Is eDiscovery? https://www.aiim.org/what-is-ediscovery.
