any one who has been involved in any level of litigation will be familiar with the concepts of discovery, meaning the documents that need to be formally put before a Court as part of the evidence supporting the allegations made in the case. eDiscovery refers to discovery in Civil Litigation which deals with the exchange of information in electronic format. For a small business or litigant this may be a relatively simple and straightforward endeavour. For medium sized Companies and upwards, a digital forensic analysis is necessary in order to recover evidence. This leads to a much wider skill set being necessary to recover the data including, if necessary, Forensic Investigators and IT Managers.
The traditional model in the USA is an examination of the data by the Attorney which is then marked for extraction. The Forensic Investigators then extract and index this documentation, usually storing it in either PDF or Tiff form for use in Court. unsurprisingly, given the geographic location of Silicon Valley, the US Courts are the first to be called upon to adjudicate in this area.
On of the big hazards about eDiscovery is the whole issue of metadata. Metadata is defined as data about data. It normally describes the 3 aspects of digital documents, namely definition, structure and administration. It can contain crucial information, such as the time and date in creation of the data, the author and an identification of the location on the computer network where the data was created. The preservation of metadata creates difficult challenges to ensure that the data is properly preserved and presented. The American Federal Rules of Civil Procedure have already been amended to include the challenges of electronic discovery on the 1st December, 2006.
The traditional pricing model for forensic examination of the documents is done on a volume basis, i.e. a charge per gigabyte. This ranges widely from Provider to Provider, as indeed does the quality of service offered. The question now arises as to whether the benefits of Cloud computing can be applied to eDiscovery to make the cost more affordable for businesses at large. The other difficulty about the gigabyte pricing model is that it is based on the amount of unprocessed raw electronically stored information (ESI). While you may be able to negotiate that the rate is calculated on the amount of Discovery identified by the Lawyers as being necessary, it still will amount to a considerable outlay.
Certain Litigation Service Providers in the US are already offering flat fees for Services that they call Early Case Assessment (ECA), additional processing if required to unpack the data and document review. These Providers are very much ground breakers as the larger Providers are still adhering to the old charging and pricing structure.
One of the core values of cloud computing is that there should be no upfront costs for infrastructures and that users only pay for what they use. This causes difficulties in a corporate sense, as a Forensic Examiner will have to examine both the private corporate cloud and also the true public cloud in order to retrieve the data. The advent of virtualisation will drive more and more storage towards both clouds, complicating matters ever further.
The next question for all users is whether to delete or not. There is no doubt we must keep sufficient data and records to maintain the integrity of our files, and also for any Revenue review, but that does not preclude Companies from removing data from their active system, i.e. backing up systems to off site storage and then deleting from the current systems. Those backup systems will simply have to be as searchable as the existing systems.
If you have to consider eDiscovery, be aware that it is becoming a very specialised area, and you need to involve your legal team, and perhaps forensic experts at as early a stage as possible.
You can’t discover what you don’t have, but that does not relieve you of the obligation of keeping that which you should!
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