Whether called electronic discovery in the US, or electronic disclosure in the UK. The process whereby parties enter litigation to share evidence prior to trial is essentially the same.
With the advent of the digital age, a new name for the process involving evidence in digital form is required. Cue the growth of electronic disclosure, more commonly known as eDisclosure. The process of disclosing digital information, also known as electronically stored information (ESI). Given its nature, this ESI may be held in numerous formats across multiple locations and jurisdictions (including the cloud).
The digital forensics and eDisclosure industries have developed around preserving digital information such as emails, SMS, PDFs. Alongside other documents, and the presenting them for review in a format that is readable by lawyers and their clients.
Typical Forms of ESI:
- Personal computers
- Calendar files
- VOIP (Voice over Internet protocol)
- Databases
- Notebooks
- Web-based applications
- Back-up tapes
- PDA devices
- Video
- Mobile phones
- Social networking sites
- Off-site storage
- Laptops
- Portable data storage media e.g. DVDs,
- USB sticks
- Document files
- Email files e.g. Outlook, Lotus Notes,
- Hotmail, Gmail
- Handheld devices
- Spreadsheet files (this list is not exhaustive)
Definition: Disclosure Report
A report, verified by a statement of truth, that:
- Describes how any electronic documents are stored.
- States which of the directions in CPR 31.5(7) or (8) are to be sought.
- Briefly describes what documents exist or may exist that are, or maybe, relevant to the matters in issue in the case, and describes where, and with whom, those documents are, or maybe, located.
- Estimates the broad range of costs that could be involved in giving standard disclosure (including the cost of searching for and disclosing any electronically stored documents).
In an eDisclosure process, whenever a document is deemed relevant, irrespective of where in the world it may be located, it would be expected that all reasonable steps are taken to ensure all copies of the electronic data are captured. Failure to comply with a Court order or the parties’ agreement to forensically image all relevant ESI can result in substantial damages. And, these may severely impact an organisation’s ability to operate.
Why is this Important?
Cost Estimation
Why is it Necessary to use a Digital Forensics Specialist in Electronic Disclosure?
In this day and age, with the availability of software tools, you would think that retrieving documents or computer records are a relatively easy task. Isn’t it just as simple as asking the IT Manager to copy and paste the relevant files onto a USB device and providing said memory back to you? The reality is, it is not so straightforward as that. In fact, the scenario described above is not only a forensically unsound process, but it also would not be defensible in a court of law.
The reason is that precise data is required, and retrieval of that data is carried out by digital forensics specialists in a manner that preserves and retrieves the document with all metadata (a set of data – often hidden – that describes and gives information about other data such as when the document was created, its owner and more). Once any digital device is deemed relevant as evidence to a case, even powering up that device could irrecoverably alter the data in question.
The Scale of the Task at Hand
The scale of the task can be a massive barrier: electronic disclosure can be a huge task and if not done properly. With the sheer volume of data involved in a case potentially amounting to terabytes (1 TB of paper stacked would be 66,000 miles high!), and that data is growing year on year. In 1993 the total internet traffic amounted to one terabyte. Costs can be incurred unnecessarily, and you may be exposed to arguments by the other party that your disclosure is disproportionate and/or crucial evidence has been lost or not disclosed; this may result in adverse costs orders and other sanctions.
“As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.”
Both parties are under an obligation to preserve and disclose to the other party all relevant documents to the dispute. Specific requirements for data retrieval are defined in the pre-trial stage and will determine the actual costs involved.
In a Traditional Situation, Businesses Deal with:
- Active data – working content and live applications
- Recovery copies – generally stored on back-ups in the cloud or local network
- Archives – where older versions are stored
- Compliance copies – required for legislative or standard compliance – a separate archive.
The primary problem is that businesses often fail to link these disparate copies correctly and additional copies are often created inadvertently, as different revisions are created or email updates are sent. Information lifecycle management (ILM) is the ultimate aim, where each document is tracked from initial conception, through multiple revisions and to eventual purge and deletion.
Happily, there are software solutions that will handle these issues and ensure that compliance. Alongside, eDisclosure and other data tasks are handled in the background without manual intervention. These solutions are customised to suit the activities of the practice.
Making the transition to electronic document management sooner rather than later is recommended. As it is much easier to work with electronic originals rather than handle conversions from paper-based records. Integrating radiology media and other image-based data is an added advantage.
Further reduce data volumes by purging unnecessary data in a secure manner through eDisclosure. Staff training is essential and original data should be accessed from a single central location, done without sending copies by email or other methods, instead of sending links that allow authorised users to view the data.
The fact remains that every business, regardless of size, faces a risk of exposure to such a situation. Preparation is key. Effective data management and careful control of data access will substantially reduce the costs associated with unexpected litigation or demands for data. This can be achieved using cloud-based solutions, for example, as data is stored in a single location and accessed remotely by employees with the correct user credentials. This is an important consideration when sensitive information such as health records is involved.
Explore our complete eDisclosure solutions offering here.
