E-discovery, or electronic discovery, is the process of collecting, processing, and producing electronically stored information (ESI) for use as evidence in legal proceedings. E-discovery is commonly used in common law legal systems. It is used in the initial phases of court proceedings when involved parties are required to provide relevant records and evidence related to a case. This process includes obtaining and exchanging electronic data that is sought, located, secured and searched for with the intent of using it as evidence.
Legal technology, in particular the use of software and other tools to support legal practice and research, can be an effective way to streamline and automate various aspects of the e-discovery process. However, the e-discovery process can be complex and resource-intensive, and it is further complicated in the European Union (EU) since many or almost all of the EU member states are civil law oriented, while the institute itself is widely present in US legal system. In this article, we will examine e-discovery to understand how it works, and how it can be used by lawyers to make their work more effective. Furthermore, this article will dive into the use of e-discovery within the EU civil law jurisdictions with the hope of uncovering instances where use of e-discovery is permitted.
I. E-discovery technology and how it works
E-discovery tools assists legal professionals in the discovery phase of a lawsuit, in which each side of the case must disclose relevant evidence to the other side. According to Electronic Discovery Reference Model (EDRM), the e-discovery technology process can be divided into seven (07) steps. These steps which shows how the e-discovery technology tool works will be explained in the following paragraphs.
Step 1 – Identification
The first thing the e-discovery technology tools do is identify the sources of relevant electronic data, such as email servers, file servers, and personal computers. When it has identified the various sources of data, it moves on to the second step where it does preservation.
Step 2 – Preservation
In this step, the tool places a legal hold on the identified data sources to preserve the data and prevent it from being modified or deleted. When this is done, it activates the next process known as collection.
Step 3 – Collection
During this phase, it uses a specialized software and hardware tools to collect the relevant data from the identified sources that had been preserved. This may include data from emails, instant messaging, social media, and other forms of electronic communications.
Step 4 – Processing
After the collection phase is completed, the e-discovery software processes the collected data, which includes ensuring that the collected data is not duplicated, it filters, and normalizes the data. This step reduces the amount of data that needs to be reviewed by legal teams.
Step 5 – Review
The next step involves reviewing the data to identify relevant documents, including any privileged or sensitive information that should be protected from disclosure.
Step 6 – Production
Production entails producing the relevant documents to the other side of the case, including any metadata and other electronic evidence.
Step 7 – Analysis
The final step involves using advanced analytics and visualization tools to analyze the data and identify patterns, trends, and other relevant information.
From the above, it is clear that the e-discovery process can be complex and time-consuming, one that requires a specialized knowledge and expertise. We should be mindful of the fact that the technology used in e-discovery is continuously evolving forcing companies, law firms and other organization to increasingly turn to e-discovery service providers to handle the process for them.
II. How E-discovery technology tools make lawyers more efficient
In recent years, the e-discovery technology has become increasingly important for lawyer, as more and more of the legal process takes place in the digital realm. As already defined, e-discovery technology refers to the tools and techniques used to identify, collect, process, and review electronic data in the context of legal proceedings. This data can include emails, documents, social media posts, and other forms of electronic communication. It is estimated that roughly 2.5 quintillion bytes of data is being generated on a daily basis. With this vast amount of electronic data being generated and stored on a daily basis, e-discovery technology has become essential for lawyers to effectively manage and analyze this information in order to build a strong case. The e-discovery technology, therefore, helps lawyers in several ways in making their tasks more successful.
Firstly, the technology makes the job of legal practitioners more cost effective. E-Discovery technology assist lawyers in being cost effective by reducing the time and effort required to review and organize large volumes of documents. With the help of an e-Discovery software, a lawyer can quickly search through thousands of documents for specific keywords or phrases, reducing the time and effort required to manually review each document. Additionally, e-Discovery technology can automatically organize and categorize documents, making it easier for lawyers to find relevant information and build a rock solid case, which helps in minimizing the need for additional resources.
Secondly, e-Discovery technology tools assist lawyers in streamlining their workflow. The discovery process is a complex and intense one. However, e-Discovery technology plays a vital role in giving lawyers in streamlining workflow since it automates many of the repetitive and time-consuming tasks associated with the discovery process. This happens when the e-Discovery software quickly and easily processes, reviews, and organizes large volumes of documents, thereby reducing the time and effort required to manually review each document. The software also provides tools for collaboration and communication, which makes it easy for lawyers to share information and work together more effectively. This is possible because some e-Discovery software such as Relativity by kCura permits multiple reviewers to work on the same document simultaneously, and provides real-time notifications when changes are made. This can help to ensure that all team members are aware of the latest developments in the case, and can help to minimize delays and reduce the risk of errors. Other software which performs a similar function includes Concordance by LexisNexis, and iCONECT by Xact Data Discovery. Furthermore, some e-Discovery software provides tools for data export and import, which can facilitate the transfer of data between different systems and platforms, thereby reducing the need for manual data entry and minimizing the risk of errors. This function can be performed by our software examples mentioned above.
Moving forward, e-discovery technology assists lawyers in maintaining compliance. One of the worries associated with the transfer of data from one system to the other is the issue of compliance. Luckily, this task would be performed more efficiently by lawyers with the help of e-discovery technology software. Using an e-discovery software, a legal practitioner can quickly search through company’s emails, files, and other data sources to identify and preserve relevant data in accordance with legal and regulatory requirements. Also, an e-Discovery technology can automatically apply retention and deletion policies to data, ensuring that data is retained for the appropriate period of time and then deleted when it is no longer needed. It gets more interesting as some e-Discovery software provide tools for data encryption, which helps to protect sensitive data and ensure compliance with data privacy regulations. Not only do they do these, e-Discovery technology assists in identifying and addressing any potential issues or non-compliance with legal and regulatory requirements providing tools that identifies and redacts sensitive information or privileged data, ensuring that only relevant and non-privileged data is produced. They also track and report on data collection and preservation activities, which can help lawyers demonstrate compliance with legal and regulatory requirements.
Another way in which e-Discovery technology makes a lawyer’s work more efficient is through searches and analysis. Searching online for relevant material is a cumbersome task. E-discovery technology software assist lawyers in performing this task by providing advanced search capabilities and analytical tools. To achieve a successful result, a lawyer can use an e-Discovery software to perform Boolean searches, proximity searches, and concept searches to quickly identify relevant documents. The software may employ machine learning algorithms to automatically classify and categorize documents, making it easier for a legal practitioner – to find, extract and analyze relevant information. To further ease the electronic discovery task for lawyers, some e-Discovery software provides visual analytics tools such as keyword clouds, timelines, and relationship maps to help identify patterns and connections within the data. These tools can also be used to create customized reports and summaries of the data, which can help lawyers present their findings more effectively in court.
Lastly, e-Discovery technology plays an essential role in automation. E–Discovery technology automates many tasks for lawyers during the discovery process, such as document review and organization. For instance, when performing the burdensome task of e-discovery, a lawyer can use an e-Discovery software to quickly search through thousands of documents for specific keywords or phrases, reducing the time and effort required to manually review the documents, as well as automatically organizing and categorizing documents, thereby making the documents ready for use in court.
The above, are ways in which an e-Discovery technology can serve as a trusted buddy in making the task of a lawyer more effective. However, how efficiently these tasks are performed would depend on the quality of the e-discovery technology used. Therefore, with the rapid pace at which new technologies are developed, it is recommended that we get verified and result-oriented e-Discovery technology software packages.
III. E-discovery in the EU (Civil Law Jurisdictions)
Unlike the common law system which has a concept of discovery process in litigation, the civil law system does not have. This is because common law is a system built on case law or decisions made byjudges, while civil law is a system made of codified principles which serve as main source of law. Almost all 27 EU members states are classified as civil law countries. This makes it difficult for e-discovery rules to apply. However, the status quo seems to be changing as they are now cases indicating the presence and use e-discovery.
Discovery is a process which occurs before the trail and it allows the plaintiff to gather material which s deemed relevant in preparing a solid case. Among its many roles is the fact that the discovery process prevents or reduces the occurrence of surprises during the trial proper. The element of surprise as mentioned is completely strange within the civil law system because proceedings are mostly written than oral (as it is common the common law legal systems). As such, lawyers in the civil law system play a less engaging role in the course of a legal proceeding. However, within the EU civil law jurisdictions, e-discovery tools are now an integral part in competition and antitrust investigations, this is why this tools are slowly getting more attention also among EU countries.
In the past, competition law investigations tended to focus on traditional forms of evidence, such as paper documentations and witness testimony. However, with the rise of technology, there is the presence of a significant amount of information relevant to antitrust cases that is stored electronically. This information includes emails, instant messages, text messages, social media posts, and other forms of electronic communication, as well as data from company databases and other digital systems. As a result, the use of e-discovery has become a critical tool for both the European Commission and other businesses involved in competition law cases. The regulators use e-discovery tools to quickly and efficiently access and analyze vast amounts of electronic data which can help them build stronger cases against businesses suspected of antitrust violations. Businesses on their part use e-discovery tools to respond more effectively to regulatory requests for information, and to protect themselves or unfounded allegations of wrongdoings.
Although most or all civil law jurisdictional do not officially approve of the use of e-discovery procedures, a deep research into the laws and texts in certain areas will show that e-discovery tools can be used. In France, for example, government regulators increasingly use electronic evidence retrieval software in areas such as tax law, antitrust law, financial markets, and criminal investigations which are subject to government control to sort evidence. The use of these software allows for the discovery of a vast amount of evidence. In Germany, besides being used in areas which are subject to government control, e-discovery can be used in pre-trial discovery in civil and commercial matters as contained in the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”).
Though privacy concerns might arise during such processes, to comply with GDPR requirements on the collection, storage, and use of personal data, businesses must ensure that the personal data collected are used only for a specific and legitimate purpose. Individuals involved must be informed of the processing activities and appropriate technical and organisational measures must be put in place to protect against unauthorized access or disclosure.
The above shows that though the civil law approach does not have a concept of the discovery process in litigation, e-discovery can be used in competition law and antitrust investigations, and other matters that are subject to government control. It can also be used as provided by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Evidence Convention”).
IV. AI contract review tools v. e-discovery tools
Having looked at how e-Discovery technology/tools function, one may say they are similar to AI contract review solutions. We have already defined e-Discovery as “the process of collecting, processing, and producing electronically stored information (ESI) for use as evidence in legal proceedings”. For a better understand, it is imperative to know what AI contract review solutions are. AI contract review solutions are software tools that use artificial intelligence (AI) and natural language processing (NLP) techniques to automate the process of reviewing and analyzing legal contracts. These solutions can be used to identify key clauses, extract important information, and flag potential issues or risks. They can also be used to compare different versions of a contract or to automatically generate contract summaries. The process typically involves training the AI system on a large dataset of legal contracts, so that it can learn to recognize and extract relevant information. Once trained, the system can be used to quickly review and analyze new contracts, saving time and increasing efficiency.
From the above, it is clear to some proportion that e-Disvcovery and AI contract solutions tools are similar. That not withstanding, we shall throw a little light on their similarities and differences in details.
AI contract review solutions and E-Discovery tools are similar in that they both use artificial intelligence and machine learning technology to automate the process of reviewing and analyzing large amounts of data. Secondly, both e-Discovery and AI contract review solution tools have the ability to identify and extract relevant information, such as key terms and clauses, from documents and other types of data. However, these tools differ from one another in their specific application and purpose. AI contract review solutions are primarily used to analyze and review contracts and other legal documents, such as agreements and NDAs, with the aim of identifying potential risks and issues, and to extract key information such as clauses and terms. E-Discovery tools, on the other hand, are principally used in the legal discovery process, where they are used to identify, collect, and review electronic data that may be relevant to a legal case. These tools are typically used in litigation, arbitration, and other legal proceedings.
In conclusion, e-discovery tools have proven to be an effective way to reduce the workload of lawyers and improve the efficiency of the legal process. These tools work by analyzing vast amounts of electronic data and identifying relevant information that can be used in a court of law. Though the concept of e-Discovery is not recognized within the civil law approach, this article, however, shows that in the case of competition law and antitrust investigations, and other areas under government control they can be used for a variety of purposes, including identifying evidence in a case and identifying potential witnesses. Furthermore, we have also seen that to some extent, e-discovery tools are similar to AI contract review tools as both use advanced algorithms to analyze large amounts of data and identify relevant information. At this juncture, It suffices to say, therefore, that e-discovery tools are a valuable tool for lawyers and legal professionals in the EU and have the potential to greatly improve the efficiency of the legal process.