eDiscovery basics: getting to the evidence sooner

Court deadlines for evidence and discovery are tighter than ever. The client's records are usually scattered across multiple interconnected systems storing email, chat, business records, phone records, and cloud files. Getting to that evidence quickly and defensibly is what eDiscovery is for. Adio defines eDiscovery as the preparation of evidence in electronic form: a broad definition, but one we've found suitable and flexible for Australian lawyers dealing with matters of all sizes.

“When should we use Adio’s eDiscovery services?” is a common question we are asked. Many legal teams run eDiscovery matters with low document volumes. Their need is to prepare documents electronically, remove duplicates, prepare a chronology and ensure they can be listed in a “court-ready” format. This limited service still falls within our definition of eDiscovery.

What does eDiscovery actually mean?

For more complex matters, Adio offers services and tools that support a wide variety of document types. The support we provide can be viewed through the lens of the Electronic Discovery Reference Model (EDRM). For a non-technical audience, it can be characterised as:

1. conversion and normalisation of data for legal purposes.

2. the technology, people, and processes to copy, manage, analyse, exchange, and present data for investigations and litigation.

3. professional services that tie those capabilities together to oversee and deliver outcomes.

Small matters still count

For small-volume matters, eDiscovery may be limited to PDF conversion, deduplication, file numbering, and electronic court book preparation. That's often the minimum needed to work with counsel or meet court guidelines.

“In smaller matters, eDiscovery may be limited to PDF conversion, deduplication, file numbering, and electronic court book preparation.”

In more complex matters where relevant documents are dispersed across systems and not well understood, a systematic, disciplined search promotes thoroughness and is defensible. The Model (EDRM) defines a process for structuring the identification, preservation, collection, review, analysis, and production of digital evidence, and it scales to large datasets. In larger matters, consultants and experts are engaged to assist the legal team through the phases of eDiscovery, manage the technology, and collaborate on decisions that carry downstream data, time, and cost implications.

Where the evidence lives now

Evidence is no longer confined to email and official archives. Digital evidence can include email, cloud-stored documents, Teams and Slack messages, spreadsheets, phone messages and voicemails, video, and the more unusual data types that modern organisations create every day, either directly or within web-based applications.

In our experience, clients might assume the worst: “the whole IT system is terabytes of irrelevant data” and that all of it is subject to discovery. Rarely is it required, or effective, to swallow every bit and byte in a business. eDiscovery isn't about reading everything. It's about getting to the evidence faster in a way you can defend.

“eDiscovery isn't about reading everything. It's about getting to the evidence faster, in a way you can defend.”

Australian courts have focused on dispute resolution measures that facilitate the just resolution of disputes as quickly, inexpensively, and efficiently as possible. Discovery is no exception. Anecdotally, Adio is assisting more clients under time pressure from the courts and arbitrators to put evidence on and to deliver discovery under reduced timeframes. A crucial element of success in high-pressure, document-intensive litigation is leveraging technology that scales from small volumes to large volumes with ease.

Scoping the search

Often, the first step in scoping the search is to sit with the organisation's IT team and interview witnesses and custodians to understand which systems are used in their roles and who else may hold relevant records. This usually leads to developing a data map covering the people involved and the systems that store their information. From there, each system's capabilities for preserving, searching, and extracting records can be considered.

This may sound daunting, but in most matters, the primary sources of business records are Microsoft 365, Google Workspace, email archive systems and mobile phones. Each can be handled quickly, with the ability to scope data by people, teams, date ranges, and other criteria.

Estimating the overall data volume is usually one of the first steps in planning discovery or responding to a discovery order. Subsequent steps in data processing and analytics reduce document volume and focus the legal team on the relevant material and facts.

Where systems contain voluminous records or are difficult to access or search, meeting with eDiscovery experts can help confirm the challenges and properly scope the effort. An independent view, backed by access to the latest search tools, can help assess the true effort and reasonableness of a search request. That view can clarify the options for fulfilling the search, inform the plan discussed with the client and the other side, and help justify limiting the scope of discovery. A discovery plan is a flexible tool that can specify limited data sources, restrict documents to those matching keywords, and permit the use of technology-assisted review or other techniques.

Where the technology is heading

Technology is rapidly advancing. Due to the volumes and challenges of large, unknown datasets, the legal profession benefits from many of the latest AI advancements. Adio and Everlaw are at the forefront. We regularly assist with AI-assisted coding, using vectors and AI to provide question-and-answer responses over millions of documents, and deploy secure AI agent harnesses to help perform tasks and manipulate data. There is recent international guidance supporting the use of generative AI review as a species of Technology Assisted Review. We’ll write more about the use of these technologies in future publications.

Adio is focused on informing clients of their options and then assisting with the work. We provide a robust yet flexible process that supports matters as they evolve and grow in size and complexity. Our role is to articulate the technical options for getting to the evidence sooner and to enable the legal team to litigate as they intend.

Adio practical tips

1. Good eDiscovery practices allow matters to scale from a small number of documents to terabytes. Unique numbering, deduplication, and chronological ordering pay off whether you're working with 50 documents or 5,000,000.

2. Scope and plan early. Resist the urge to capture "all email" or "the whole server." In planning, focus on the data sources and date ranges most likely to hold documents relevant to the issues in dispute.

3. Build a data map with IT and custodians. A short series of conversations with the people who use the systems and the people who run them usually surfaces most of what matters. Capture it as a simple map and develop a plan for what is achievable and what is difficult. Update this as your understanding of the matter evolves.

4. Settle the exchange protocol up front. Agree on file formats, naming conventions, confidentiality treatment, and (where relevant) handling of unusual or unexpected data sources.

5. Be open to learning how technology can help. Deadlines are more aggressive than ever. You’ll often consider using basic key terms and searches to get to the relevant material. Also leverage advanced, proven eDiscovery technology to help your client prepare their evidence and quickly interrogate data from opposing parties.