Blog | March 08, 2023
Why Use a Hammer When You Can Use a Swiss Army Knife?: Today’s Use Cases for eDiscovery
The Federal Rules of Civil Procedure (FRCP) were established in 1938. Those rules established the procedures for pre-trial discovery and were based upon the idea that parties should not be subject to surprises at trial. Discovery and litigation have historically been intertwined and as the evidence moved from being primarily paper based to mostly electronically stored information (ESI), the FRCP rules have been updated twice – in 2006 and 2015 – to accommodate eDiscovery of ESI. Most states have adopted similar rules to apply to their cases.
eDiscovery has its roots in litigation, and litigation is still the use case that people reference the most when discussing eDiscovery. For decades, eDiscovery was the “hammer” for the proverbial “nail,” which was litigation.
Today, however, eDiscovery workflows and technology can be applied to much more than litigation. The information derived from ESI drives workflows from investigations to privacy requests to cyber incident response – and more. You can’t conduct these workflows without identifying, preserving, collecting, processing, analyzing, reviewing, producing, and presenting ESI. eDiscovery has become the “swiss army knife” that applies to any workflow involving ESI.
In this series, we will discuss considerations for use cases to which eDiscovery workflows and technology can be applied to provide considerations and best practices for each of the use cases.
Trends for eDiscovery Use Cases Today
So, what are the use cases for eDiscovery? And how often are legal professionals applying eDiscovery to those use cases? eDiscovery Today’s 2023 State of the Industry Report asked this question in this year’s industry survey:
“To which use cases do you or your organization apply eDiscovery technology and workflows today?”
Here are the results from 410 respondents to the survey (from most to least):
- Litigation: 96.3%
- Investigations: 83.2%
- Arbitration: 50.5%
- Government Information Requests, e.g., Freedom of Information Act (FOIA): 48.0%
- Incident Response: 47.8%
- HSR Second Requests for mergers and acquisitions: 42.9%
- Privacy Requests, e.g., Data Subject Access Requests (DSARs): 42.4%
- Information Governance, e.g., defensible deletion/ROT removal: 36.6%
- Audits: 29.8%
- Other: 4.9%
That means that seven use cases are being applied by at least 40% of survey respondents, with another use case (InfoGov) not far off. That’s a strong indication of just how much of a “swiss army knife” eDiscovery workflows and technology have become for organizations.
You might ask why is eDiscovery being used for so many additional use cases these days? eDiscovery workflows and technology can help organizations save time and money, reduce risk, and ultimately help them make better informed decisions about their business – regardless of what business need is being addressed.
Of course, while an eDiscovery workflow can be applied to each of the use cases identified above, the workflow for each use case will be unique. For example, the timetable for litigation can vary widely while the timetable for a Hart–Scott–Rodino (HSR) Second Request to support a merger or acquisition can be as soon as 30 days, even though the information being provided can often be even more voluminous. Document reviews for litigation focused on responsiveness to key issues in the case are conducted differently than incident response reviews focused on identifying potentially compromised personally identifiable information (PII).
The application of technology can be different as well. Applying technology assisted review (TAR) is typically not needed to support response to a data privacy request, while it can be a critical component for litigation or HSR Second Requests. For information governance, technology is used to facilitate identification and defensible deletion of redundant, obsolete and/or trivial (ROT) ESI within the organization.
Regardless of the differences between the use cases, the application of EDRM phases to ESI applies to every use case. By leveraging eDiscovery technology and workflows, organizations can efficiently identify and manage key ESI for a variety of use cases, such as litigation, investigations, data privacy, compliance purposes and much more. Ultimately, just about any use case that involves ESI needs eDiscovery! The key is having the expertise to understand how to uniquely apply eDiscovery to each use case to support the requirements of that application. Every ESI problem isn’t a nail, so ditch the “hammer” and learn what the “swiss army knife” can do for you!
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