Discovery is a pre-trial procedure that involves the disclosure of documents to be used by the parties involved in a hearing, arbitration, legal proceeding or other form of litigation. This process is legally required, and ensuring the maximum disclosure of documents relevant to one’s case is important not only in the interest of full disclosure, but also because the absence of such documents – whether intentional or not – could be perceived as acting in bad faith, leading to a mistrial or other liability that could otherwise be avoided.
Following suit to this long held and thorough legal tradition, eDiscovery is is a whole new ballgame (well, if 2006 is new). With eDiscovery, a defendant might request specific digital records, and the prosecution needs to be able to provide them or face legal (and financial) repercussions. Electronically Stored Information (ESI) that is subject to production based on litigation would require a service or software to produce a wide range of digital files, such as documents, emails, video, photos, messages, databases and more.
With businesses increasingly moving to the cloud with the likes of Office 365, eDiscovery tools are becoming a must for best practice Information Governance (IG). According to Proofpoint, 55% of businesses have been required to produce email by a court or regulatory body for legal purposes. Producing such documentation efficiently requires businesses of all sizes to consider what process is in place – and for email in particular – or face the legal and financial repercussions that could follow.
Effective eDiscovery tools needs to be able to carry out the following primary tasks on demand:
Identification: Upon legal suit, be able to identify the key information and records, through content, metadata, and other, scanning through potentially terabytes and years worth of data.
Collection: Being able to access the records (without corruption or loss) and prepare for processing.
Processing: Being able to gather, analyze and ensure the right ESI has been collected and is ready to be shared.
Production: This includes ensuring appropriate formats (such as PDF or TIFF) are generated and will be presentable as is in court or other avenues.
While the above is a simplified overview of eDiscovery requirements, it should be evident that this can very quickly become a costly process if your IG is not in order. As part of IG, eDiscovery is a crucial element to plan for – as any business runs the risk of being required to produce records and data not only to litigation ends, but even for some of the many laws governing breaches (such as GLBA, HIPAA, PCI etc.).
As noted in the infographic above, IG and eDiscovery is beyond having strong IT operations, it also includes an inherent risk/value analysis. A strong IG system, with fast and efficient eDiscovery tools, will dramatically reduce costs across all eDiscovery stages. An automated eDiscovery system is much less costly than hiring a forensic specialist.
Based on your specific needs, here are the important features that you should consider when looking at a solution:
- What are the industry requirements of storage for your organization? For example, most legal and financial institutions are required to retain 7 years of records. 10 Years of unlimited storage and retention will give you leeway.
- Automation policies need to recognize business essential emails and attachments and to exclude retention of non-essential emails. This will dramatically improve performance when there’s a need for eDiscovery or a legal hold.
- Properly organized storage, especially of rich metadata will facilitate rapid searches by subject, content, attachment content, dates, senders, and using other advanced filtering services.
- Office 365 eDiscovery and other cloud based capabilities are increasingly a demand we are seeing from clients as the shift from on-premise to cloud based email solutions continues. Is your Office 365 email archiving and eDiscovery solution up to standard?
- In the event of a BCDR event, you are required to have systems in place guaranteeing the integrity of your archived data. In most if not all cases, the most secure method is off-site and tamper proof.
- In the event of litigation, you may be required to produce data in specific format as per court orders. This includes the export of emails and other data into PDF or other appropriate formats.
- If using archiving solutions with eDiscovery, does the archiving solution allow for specified legal holds? This can often be in the range of 5-7 years and up depending on specific industry guidelines in finance, real estate or elsewhere.
That’s a brief introduction to eDiscovery and why you want to make sure you have a solution in place that can handle it in case of litigation. Proofpoint further found that less than a quarter of organizations have highly automated archiving systems for compliance purposes, and even fewer have the high levels of automation to offset eDiscovery and legal workloads.
We are not lawyers, and this does not constitute legal advice. Every industry and business will have unique needs. We advise consulting with a legal specialist when designing your in IG plan, and to delineate your legal and system requirements. Beyond that, we offer email Archiving that features eDiscovery, which even allows you to appoint eDiscovery users and get the lawyer’s work out of IT’s hands – and we’d be happy to talk about meeting your needs.
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READ MORE:
[Infographic] Electronic Discovery Best Practices – An Easy to Understand eDiscovery Graphic
Read About eDiscovery On the Association for Intelligent Information Management Website
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