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e-Discovery – The Legal Evidence

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Information and Communication technology has observed a variety of changes in past decade. Smart phones have become frequent, every year new versions of mobile OS are being released with advanced features.

 
 

E-mails have replaced paper communication and have become an essential part of our daily corporate and personal communication, WhatsApp has replaced SMS, Skype – WhatsApp and Facebook Messenger’s voice and video call functions are giving competition to telephonic conversations, banking facilities are available on the fingertips, stock market has left the paper based system and are held electronically, e-Commerce has seen unexpected growth. None of these information and communication forms are having any physical evidence available on paper. However, in many countries, the judicial systems are still highly dependent on paper based system. There is no doubt that in past few years we are observing changes but factors like low computer literacy and inadequate judicial infrastructure are still the core issues.

Many high-profile judgements take number of years to reach a conclusion and many keep pending in the court for decades due to lack of proper evidence to support judgement. Many corporates are entering in lawsuit for their patents/trademark or claims for providing poor goods and services.

Meanwhile, in United States, The Federal Rules of Civil Procedure (FCRP), a set of regulation that specify procedures for civil legal suits within federal court system were amended, effective December 1, 2006, considering the importance of Electronic Information, its volume and persistence.

Different parties in civil litigation matter are required to exchange information and evidence with one another. This process is called Discovery. They do this through variety of means, including exchange of documents. In olden times parties exchanged many boxes of paper documents. One of the recent example in India was back in 2012 when Sahara Group had forwarded trucks loaded of documents to SEBI.

 

Over time, paper documents were largely replaced with computer generated content, and the process of discovery was forever fundamentally changed turning into e-Discovery where electronic tools for document review were designed, the documents were loaded onto the software and each document was reviewed linearly.

Defining e-Discovery

Electronic discovery commonly known as e-Discovery, is a procedure by which parties in legal matter, such as litigation – preserve, collect, review and exchange information in electronic formats – knows as Electronically Stored Information (ESI) – for the purpose of using it as evidence in the matter.

When a company is sued, the parties in the lawsuit ask for documents and other evidence from each other so they can fully explore the facts of the case prior to a trial. e-Discovery is the process of exchanging documents and other information in electronic form.

e-Discovery typically includes stages as referenced in below image knows as EDRM (Electronic Discovery Reference Model)

 

EDRM is a conceptual representation of e-Discovery process. Information governance is managing information at enterprise level. In any e-Discovery process,

  • During Identification phase, potentially relevant ESI sources, key witness, document custodians, keyword lists etc. are identified.
  • During Preservation, data identified as potentially relevant is placed in “Legal Hold” which ensures that no data is modified or destroyed.
  • Collection is the process of transferring the data to legal counsel.
  • Culling and Processing stages help in removing duplicate information in addition to other filtering of data. Then the final set is loaded to review platform for further review process. For all these processes, variety of e-Discovery software are available.
  • Review process is typically done by law firms where they check for relevant and privilege information on the data loaded on review platform.
  • Analysis is a stage that improves productivity in the e-Discovery process. After finding required information,
  • Production is a stage where it is delivered to other parties in appropriate structure.
  • Presentation is display of ESI before the involved audience like court or other bodies.

e-Discovery may have number of people involved including law firms of both parties, IT experts (e-Discovery experts), Forensic specialists etc. and each of them plays crucial role at individual level. Failure at any level may result into extra time and cost.

Considering the amount of information exchange that is happening electronically nowadays, it has become almost impossible to review information manually with precision. e-Discovery tools help to save time and money if we compare the amount of available electronic information. It also helps to gain a strategic advantage for the matter.

e-Discovery industry is multi-billion dollar industry which is expeditiously evolving and has a bright future, considering the technological leap human race is observing in this era. Contemplating the internet penetration growing in past few years, India has become one of the largest mass of smart phone and mobile internet users. Digital banking and e-Commerce usage also support above fact. Indian government is generating digital trail of citizens by pushing AADHAR scheme and Supreme court is pushing e-Court projects. Different companies from US and other parts of the word are now targeting India as an emerging and positive market for e-Discovery and have started penetrating their business in different cities of India with their well-developed e-Discovery software and other supporting software. As a result, drastic changes in existing judicial system of India, within a short span of 5-10 years, won’t be a wonder.

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    By: kandarp

    Kandarp Joshi is Sr. Solutions Engineer with a leading MNC working in e-Discovery domain for last 15 years. He has 5+ years of domain experience working with different clients of recognised law firms in USA, UK, France and Japan. He has expertise and keen interest in learning different e-Discovery review platforms, e-Discovery data processing application and other supporting software.

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