E-Discovery and its Stages

Every organization should take necessary steps to be prepared for E-Discovery. What is E-Discovery?

Electronic discovery or E-Discovery refers to discovery in legal proceedings such as litigation or government investigations where the information is sought is in electronic format. This information is often referred to as electronically stored information or ESI.

Electronic information is considered different from paper information because of its intangible form, volume, transience, and persistence. Electronic information is usually accompanied by metadata that is not found in paper documents and it can play an important part as evidence. For example, the date and time a document was written could be useful in a copyright case. The preservation of metadata from electronic documents creates special challenges to prevent its destruction.

E-Discovery Stages

Identification

The identification phase is when potentially applicable documents are identified for further analysis and review. Failure to issue a written legal hold notice whenever litigation is reasonably anticipated, will be deemed grossly negligent. This is why it is very important to implement legal holds on specific electronic information.

Custodians who are in possession of potentially relevant information or documents should be identified. To ensure a complete identification of data sources, data mapping techniques can be used. Since the scope of data can be overwhelming in this phase, attempts are made to reduce the overall scope during this phase, such as limiting the identification of documents to a certain date range or search term(s) to avoid an overly burdensome volume of information to be on legal hold.

Preservation

A duty to preserve begins upon the reasonable anticipation of litigation. During preservation, data identified as potentially relevant is placed in a legal hold. This ensures that data cannot be destroyed. Care should be taken to ensure this process is defensible, while the end-goal is to reduce the possibility of data destruction. Failure to preserve data can lead to sanctions. Even if the court rules the failure to preserve as negligence, they can force the accused party to pay fines if the lost data puts the defense at an undue disadvantage in establishing their defense.

Collection

Once documents have been preserved, collection can begin. Collection is the transfer of data from a company to their legal counsel, who will determine relevance and disposition of data. Some companies that deal with frequent litigation have software in place to quickly place legal holds on certain custodians when an event (such as legal notice) is triggered and begin the collection process immediately. The size and scale of this collection is determined by the identification phase.

Processing

During the processing phase, native files are prepared to be loaded into a document review platform. Often, this phase also involves the extraction of text and metadata from the native files. Various data sorting techniques are employed during this phase, such as de-duplication. Sometimes native files will be converted to a paper-like format (such as PDF or TIFF) at this stage, to allow for easier redaction labeling.

Modern processing tools can also employ advanced analytic tools to help document review attorneys more accurately identify potentially relevant documents.

Review

During the review phase, documents are reviewed for responsiveness to discovery requests and for privilege. Different document review platforms can assist in many tasks related to this process, including the rapid identification of potentially relevant documents, and the sorting of documents according to various criteria (such as keyword, date range, etc.). Most review tools also make it easy for large groups of document review attorneys to work on cases, featuring collaborative tools and batches to speed up the review process and eliminate work duplication.

Production

Documents are turned over to opposing counsel, based on agreed-upon specifications. Often this production is accompanied by a load file, which is used to load documents into a document review platform. Documents can be produced either as native files, or in a paper-like format (such as PDF or TIFF), alongside metadata.

Types of ESI

Any data that is stored in an electronic form may be subject to production under common E-Discovery rules. This type of data can include email and office documents, photos, video, databases, and other file types such as raw data.

Litigators may review information from E-Discovery in one of several formats: printed paper, "native file", or a paper-like format, such as PDF files or TIFF images. Modern document review platforms accommodate the use of native files, and allow for them to be converted to PDF and TIFF files. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.

Because E-Discovery requires the review of documents in their original file formats, applications capable of opening multiple file formats would be very useful.

In order to prevent data to be inadvertently destroyed, companies should deploy which properly preserves data across companies, preventing inadvertent data destruction.

Proper retention and management of electronically stored information (ESI) is crucial in every organization in order to be able to comply with E-Discovery process. Improper management of ESI can result in a finding of evidence destruction and the imposition of sanctions and fines.

We helped many organization in their E-Discovery preparedness in the last 17 years. We can do the same for you. Please call us for a free consultation.

12 Steps in Knowledge Management

User centered design is important for successful knowledge management. This design can also be called design thinking. Design thinking can help with process architecture, tools, and a knowledge sharing culture. These are important points for knowledge management improvement:

1. The emphasis on emotion and empathy of user would have a great impact, focus on experimentation and testing before scaling and confidence even in the face of uncertainty. Thus, buy-in for KM initiatives increases when adequate empathy has been shown to employees concerns and if participatory design elements have been used to come up with the knowledge management architecture and processes.

2. Design thinking includes a progressive approach to dealing with failure. Mistakes are treated as learning experience toward a final solution. That can help organizations by celebrating not just successes and best practices, but also failures as a source of learning. Many organizations have a repository of best practices.

3. In their haste toward project completion, many companies focus only on the results and final products. Design thinking allows for creation of extra levels of documentation along the project which may reveal new insights of value to subsequent project teams.

4. Through immersion and interaction, design thinking places a greater emphasis on conversations and thus uncovers deeper information about employees, customer and business partner expectations and aspirations. The use of customer personas also helps bring more holistic insight into the business modeling process.

5. By focusing first on minimum viable products and then full features, design thinking can help avoid features overload and large failed projects. Knowledge management can help in this regard in capturing best practices of frugal product and service development.

6. Design thinking and agile approach can be deployed right at requirements gathering stage and not just design and deployment stages. Organization can have conversations with users at the early stages and even help them question their understanding of the problems and solutions. Better alignment can be brought and lead to new ways of knowledge creation.

7. With its user centered design philosophy, design thinking brings about better interaction between a company and its employees and customers, particularly in an increasingly digital world where all kinds of assumptions are being made about customer's aspirations and problems. Organizations should work on improved formats of communication and knowledge sharing.

8. By repeatedly questioning basic assumptions behind problems, design thinking helps to structure problems in a more effective manner so that more appropriate solutions emerge. Knowledge management should include not only solving problems in a better and more efficient way, but also choosing which problems to solve.

9. Design thinking blends top-down and bottom-up approaches to problem solving, which can help overcome some problems in those KM initiatives that are top-down or led by higher levels of management without adequate factoring of users input or those initiatives where there is full users input with no management support.

10. Find the balance between design thinking and actual design. There are times when employees need to strictly adhere to established strategy, and there are times when fundamental operating assumptions should be questioned in light of changing circumstances and context. Thus the best practices certainly play a big role and design thinking can help come up with the best practices.

11. Design thinking is not just for designers or product developers. It has been used for better design of information portals, vision alignment in technology companies, more meaningful users experience, effective customer service, deeper users engagement in planning and collaboration on projects.

12. Design thinking is the key to innovation in many organizations. Involving users in the design project would also help user adoption of the knowledge management initiative.

Intent to introduce design thinking ideas in knowledge management should be followed by deep research of users and customers information creation and information seeking behavior. Interaction with them will yield very helpful ideas which should be integrated and tested repeatedly until an effective design of knowledge management can be finalized and deployed.

Galaxy Consulting has 18 years experience in applying design thinking in knowledge management. Please contact us for a free consultation.