CONTEMPORARY FORMS OF ELECTRONICALLY STORED INFORMATION (ESI) AND WHY THEY MAKE E-DISCOVERY MORE CHALLENGING

The process of e-discovery is cumbersome and time-consuming, whether you are the party initiating it or responding to it. The new forms of electronically stored information (ESI) add even more complexity to the process and make it even more challenging to manage effectively. ESI can be found in many forms, including documents, databases, audio files, videos, emails, instant messages, and more. These new forms of ESI can often overwhelm investigators and make it difficult to identify relevant data for discovery in court cases.

EDISCOVERY

1/15/2022 7 min read

The process of e-discovery is cumbersome and time-consuming, whether you are the party initiating it or responding to it. The new forms of electronically stored information (ESI) add even more complexity to the process and make it even more challenging to manage effectively. ESI can be found in many forms, including documents, databases, audio files, videos, emails, instant messages, and more. These new forms of ESI can often overwhelm investigators and make it difficult to identify relevant data for discovery in court cases.

A Brief History of Electronic Discovery (E-Discovery)

It’s probably worth remembering that as recently as 20 years ago, e-discovery was not a phrase that would be heard in a court of law. Back then, it wasn’t even possible for pieces of information to be electronically stored, hard to believe but true! The process now known as e-discovery began with the advent of email and quickly became an overwhelming challenge for companies and their attorneys tasked with responding to civil subpoenas and court orders issued by litigants.

Since those early days, technology has advanced by leaps and bounds, and our ability to store data has grown exponentially over time. In just a few short decades, we went from storing gigabytes of data on floppy disks to petabytes (1 million gigabytes) on tape storage systems. More than ever, new forms of ESI emerge every day. As a result, what used to be relatively simple discovery requests are now much more complex because they involve multiple types of media: emails, word processing documents; spreadsheets; PowerPoint presentations; video files; audio files, images, and more.

As a result, electronic discovery is becoming increasingly complicated and expensive because it requires legal teams to handle large volumes of ESI in many different formats from multiple sources. And when you think you’ve seen it all, new forms of ESI appear on the horizon — like social media posts and cloud computing — that continually challenge e-discovery professionals to do better at what they do.

New Forms of Electronically Stored Information (ESI) and Their Associated Problems

Before ESI became commonplace, court orders for the production of documents were relatively simple and targeted. For example, if a witness’s billing records from an employer were needed (which in most cases would be a third party), all that had to be done was provide the adversary with a subpoena duces tecum (Latin for produce that which is commanded), along with its attendant affidavit.

However, with the rise in technology, physical paper trails are almost extinct. In addition, many organizations engage more in e-communication, especially since many have had to go remote after the pandemic. Regardless, many organizations try to collate and store their ESI for future references; hence, they back up individual data of each system communication on cloud storage services such as Dropbox or shared drives like Google Drive. However, with increased communication data, it becomes cumbersome and haphazard; in truth, all needed information may be available on the selected storage, but they are hardly sorted, so the information is pretty scattered and incoherent.

Let’s not forget that many e-communication platforms exist, and a company with a remote approach could use multiple apps simultaneously. For example, a company could use Outlook for official emails, Skype for instant messaging, Meet for Video conferences, and even group chats via non-traditional workplace apps like WhatsApp or Kik Messenger. Such a company will need to back up conversations from all these platforms; hence, communication becomes disjointed.

Let’s say the day starts with all employees texting on a WhatsApp group before having a video conference via Google meet. At the end of the meeting, the manager sends an official email to all staff via Outlook.

In the above scenario, communication flow and chain move across multiple applications; the conclusion of the video conference via Meet could be part of the email content on Outlook. At the end of the day, everyone discusses it on the WhatsApp group. Suppose the data for WhatsApp, Meet, and Outlook are all stored individually. In that case, it becomes disjointed, incoherent, and too confusing to use in e-discovery.

It is also worth mentioning that these individual social media platforms have varying methods of storing and retrieving data — some better than others. Some of these platforms have limited data retrieval. Some platforms can only efficiently retrieve text information, and other forms of fragmented communications in spreadsheets, gifs, stickers, and emojis may be obscured. In that case, there is a possibility of missing out on vital evidence due to improper archiving of ESI due to the platform’s inefficiency.

Handling colossal volumes of data is slowly becoming a problem in archiving ESI. In 2020, International Data Group reported that small to medium-sized businesses were managing around 47.81 Terabytes of data, with that volume set to grow by 50% over the next 12-18 months. Of course, because of the ease of e-communication, coupled with the rise in remote offices, a single individual may generate hundreds or thousands of documents in a single day, many of which could be simply transitional. However, since existing systems have no way of determining the relevance of this transitional information, they are forced to keep every bit of information.

On top of that, many organizations have policies prohibiting employees from deleting any emails, even if they’re no longer needed. As a result, an investigator may need to find a needle of information in a haystack of several years of old emails. This unavoidable huge volume makes it herculean, expensive, time and manpower-consuming to track down potentially relevant pieces of information during litigation or investigation.

How do Electronically Stored Information (ESI) Challenges Affect Electronic Discovery?

The new forms of ESI increase in number and variety, thus, making e-discovery more challenging than ever before. Different applications can include billions of data points for attorneys to sift through in court proceedings. As a result, keeping up with facts becomes difficult; an attorney may even be utterly oblivious to the information available to an opposing party despite having the same documents in e-discovery.

This shift from traditional paper files to electronic records has left many questions unanswered.

> How does a firm locate and review massive amounts of data?
> How do they search and preserve content that may be scattered across multiple systems?
> How do they ensure critical data isn’t overlooked when so many other things compete for your attention?

The answers to these questions will go a long way in solving the challenges posed by ESI to legal departments during e-discovery.

In addition to the technical challenges above, new forms of ESI also impact e-discovery due to financial constraints and a lack of technical savvy on the part of the legal departments.

Financial constraints on legal departments

One reason why e-discovery can be challenging is that budgets are typically tight. In many cases, there isn’t a large budget available to do things such as hire technical assistance and experts or do anything in terms of technology upgrades. This financial constraint means that much of what must be done comes at no cost. As a result, e-discovery can often become a time-consuming process and certainly leaves little room for error when it comes down to it. In addition, ESI presents a unique challenge where typically hundreds if not thousands of different sources are involved in one project alone, and with each source usually containing tens if not hundreds of files ranging from small Word documents to huge .jpeg images, there is an enormous number of possible files that can be involved with just one single project involving electronically stored information.

As can be imagined, having too few resources could lead to communication problems, whereas having too many could cause e-discovery issues. This often leads to unavoidable delays and extensions, as both ends of a legal battle need to delay court proceedings due to missed deadlines. As a result, e-discovery has become one of the most complex legal processes today.

Safe to say, there is a dire need for a solution that allows limitless communication without worrying about possible incoherence of ESI in case of litigation.

Lack of technical savvy

While talking about ESI and the challenges it brings to e-discovery, it’s worth mentioning one of the primary reasons e-discovery can be challenging: lawyers lack technical savvy. The issue stems from a lack of technical savvy and inadequate hardware. Many companies have multiple storage levels: A worker may store a document in a shared drive, which other workers may access through search. As a result, many companies still rely on litigation hold notices and paper discovery—instead of an integrated discovery technology platform—to find relevant documents for e-discovery purposes.

It takes a lot of technical skills to effectively mine and sort through all that electronic data. In addition, ESI includes a massive array of information, such as unstructured data (emails, instant messages, and letters), transactional data (sales orders, invoices), voice recordings, and video recordings. Naturally, this increases complexity in any legal matter; it will take more time and resources to effectively do an electronic search than if hard copies were the only things being searched. To make matters worse, new forms of electronically stored information continue to emerge, increasing the chances of missing crucial evidence.

A recent survey found that only 15% of law firms have staff with technical expertise. As a result, when clients produce data in new formats, it’s typically up to their attorneys to figure out what they need to do with those records. In other words, even though many law firms now realize they need to get more tech-savvy, few have people on staff capable of handling complex e-discovery projects. For example, if an email message is received with a PDF attachment, the IT department might know precisely how to go through it—but the legal team will likely struggle. If there are no IT experts on hand, they will need to be hired. If the firm cannot afford to hire them, they would need to at least work closely with outside consultants who can help sift through all of the ESI.

Solving the Challenges posed by ESI to E-discovery

To remain competitive, firms, corporations, and organizations must consider the archiving process of ESI as vital.

E-discovery is as crucial as any other litigation procedure. Hence, without adequate technology, a firm could quickly become irrelevant when handling significant cases or multiple clients who require such services frequently. Hence, the situation begs for a solution; therefore, it is essential to find a digital archiving solution that fulfills the following functions.

> The ability to handle large volumes of data.
> The capability to synchronize information in real-time across several social platforms, ensuring communication flow is not lost.
> Excellent data retrieval techniques that help to ensure no information loss even in fragmented communications.
> The capability of sorting information for attorneys; hence, requiring them only to have basic computing knowledge.
> AI-powered ESI archiving helps save time, financial, and human resources during e-discovery.

Ensuring that your organization has a proper ESI archive is as vital as generating revenue.

At Grotabyte, our unique value is providing you with a platform that delivers a centralized, search-ready ESI archive powered by Artificial Intelligence. Hence, no matter how bulky they are, no information is wasted, misrepresented, lost or incoherent; our data collection technology is automated in real-time across all social platforms. Therefore all communication across several media is arranged synchronously.

Our solutions are based on retention policies that can be specified or mirrored from the source to guarantee that data is only kept for as long as needed. Grotabyte is economical, easy to use, and ultimately effective. Check us out for free today.