E-discovery is a procedure that involves the identification, preservation, collection, processing, analysis, and review of electronically stored information with the aim of producing it as evidence in corporate investigations, lawsuits and regulatory audits. In the past, courts have had reservations regarding the authenticity of digital evidence, which includes email, word processing documents, instant messaging histories, digital photographs, backups, printouts, ATM logs, spreadsheets, databases, internet browser histories, digital video, and audio files, because it can be easily manipulated. Today, however, laws have been enacted for the preservation and disclosure of electronically stored information, and as a result it is now increasingly used as evidence in civil, criminal, and regulatory matters. These laws are further refined with new amendments and rules that help prevent possible eDiscovery disputes.
The E-Discovery Challenge
The greatest challenge of eDiscovery is that most organizations and enterprises are not eDiscovery ready. The reason for this is the absence of an effective system in place to handle eDiscovery requests. The best practice to be followed for the successful processing of eDiscovery requests is to establish an amiable working relationship between IT and legal teams. But, how many enterprises and organizations can proudly say that about their in-house legal and IT teams? This is most often due to lack of communication and coordination between the two teams coupled with a lack of understanding as to how they could be mutually beneficial. The result is hitting the panic button when an eDiscovery request is received, which subsequently results in non-compliance, heavy fines and loss of reputation.
How to Meet the Challenge
There are a few simple steps that can go a long way in mitigating the challenges associated with eDiscovery. Lets look at a few pointers that can facilitate eDiscovery readiness:
Stay updated with new eDiscovery rules.
Like any other law, eDiscovery laws are amended to bring more transparency and less confusion. For instance, the December 2006 revision to the Federal Rules of Civil Procedure (FRCP) made the point clear regarding archiving and the need for producing evidence as soon as a request is made. Since non-compliance, even if it is unintentional, means heavy expenses in the form of fines, enterprises and organizations must stay updated with all regulations that affect them.
Implement a system.
Create a policy detailing information on backup, retention, and archiving. Ensure that everyone abides by the policy as implementing it would not only reduce work pressure but also help in complying with eDiscovery requests more easily.
Make your employees aware of policies and regulations.
Ensure that everyone associated with the company is aware of internal policies and regulations so there is no room for error as far as complying with eDiscovery requests are concerned.
Create an action plan.
Make an action plan on how to comply with eDiscovery requests to make the whole procedure less burdensome and complicated.
If you have an in-house legal team or if you depend on an external legal e discovery, putting these simple practices into action can help mitigate the risks associated with eDiscovery.