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The Ultimate Guide to eDiscovery

In the past, legal proceedings were often accompanied by boxes of binders being passed between plaintiff and defendant, or prosecution and defense. Today, most documents are provided to the parties electronically. 

 

This has opened the door to an era of massive discovery of thousands different kinds of documents of between the parties (Word documents, PDFs, Excel spreadsheets, emails, photos, and audio files), which was uncommon in the days of paper and binders. Thus, reviewing the documents provided by the other party, analyzing them, and identifying the materials necessary for the proceeding has become more and more complicated and requires a significant amount of time and resources.

 

The transition to electronic discovery has prompted companies to develop electronic tools to store and manage documents disclosed in the course of legal proceedings. As a result, eDiscovery systems were born. Through these systems, which are for the most part operated by designated companies who specialize in this, the manual review is replaced with artificial intelligence and search terms, and the binders are replaced with computerized folders organized by categories.

 

The costs involved in this new ideal are considerable and primarily depend on the size of the documents uploaded to the system, the number of system users, and the number of programming hours, according to the demands of the client. At the same time, in cases that involve the discovery of tens and hundreds of thousands of documents, the cost might be worth it in light of the saved time and the optimization of the evidence review and search.

 

In the United States, for example, eDiscovery has become the norm, so that disclosing and transferring documents to the other party is done directly through the eDiscovery system.

 

How to do this properly?

 

  1. As a preliminary step and as preparation for a future scenario in which you may become party to a legal proceeding, it is recommended to manage the information you produce and receive through proper protocols, in advance. Take, for example, a protocol for saving certain information under a unified information management system, categorized according to different content issues of each document or according to types of documents.

  2. Remote work – A protocol should be designed to define and require the storage of certain information or documents in a unified information management system, so that important documents are not left in an employee’s personal folders on a private computer. Currently, in the age of COVID-19, which has forced many businesses to work partly or fully remotely, it is important to develop organized work protocols concerning the uniform management of information.

  3. Deleting unnecessary information – The kind of information deemed unnecessary in the long run must be defined, such as intra-organization email correspondence, in order to be deleted at regular time intervals determined in advance. Alternatively, it may not be saved at any time at all. This issue raises concerns that, in the event proceedings are initiated against you, certain deletions may be viewed as obstruction of justice. However, if such deletions are made in the course of a reasonable and transparent protocol with defined periodical deletions or non-storage as described above, and if upon the initiation of the proceeding the documents relevant to it are not deleted, these will not rise to obstruction of justice because the offense’s ingredient of intentto obstruct an existing concrete judicial proceeding, is not met (Uri Elgad v. The State of Israel). In the United States, this issue has already been considered. The US Supreme Court found that a person instructing his employees to shred documents in accordance with a documents saving protocol, rather than because of a specific judicial proceeding for which the documents may be material, has not committed obstruction of justice (Arthur Anderson LLP v. United States).

 

Proper management and organization of documents is a responsible and highly useful step. It will save precious time by providing efficient and effective familiarity with the evidence throughout the legal proceeding, and will also lead to the highest quality legal strategy. In addition, managing such information will eliminate and reduce conflicts between other parties to the proceeding in terms of discovery. 

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