Seven Steps of the E-Discovery Process

Part of the E-Discovery For Dummies Cheat Sheet

In the e-discovery process, you must perform certain functions for identifying and preserving electronically stored (ESI), and meet requirements regarding conditions such as relevancy and privilege. Typically, you follow this e-discovery process:

  1. Create and retain ESI according to an enforceable electronic records retention policy and electronic records management (ERM) program.

    Enforce the policy and monitor compliance with it and the ERM program.

  2. Identify the relevant ESI, preserve any so it cannot be altered or destroyed, and collect all ESI for further review.

  3. Process and filter the ESI to remove the excess and duplicates.

    You reduce costs by reducing the volume of ESI that moves to the next stage in the e-discovery process.

  4. Review and analyze the filtered ESI for privilege because privileged ESI is not discoverable, unless some exception kicks in.

  5. Produce the remaining ESI, after filtering out what's irrelevant, duplicated, or privileged.

    Producing ESI in native format is common.

  6. Clawback the ESI that you disclosed to the opposing party that you should have filtered out, but didn't.

    Clawback is not unusual, but you have to work at getting clawback approved, and the court may deny it.

  7. Present at trial if your case hasn't settled.

    Judges have little to no patience with lawyers who appear before them not understanding e-discovery and the ESI of their clients or the opposing side.

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