The identification phase is when potentially responsive documents are identified for further analysis and review. In Zubulake v. UBS Warburg, Hon. Shira Scheindlin ruled that failure to issue a written legal hold notice whenever litigation is reasonably anticipated will be deemed grossly negligent. This holding brought additional focus to the concepts of legal holds, eDiscovery, and electronic preservation.[4] Custodians who are in possession of potentially relevant information or documents are identified. To ensure a complete identification of data sources, data mapping techniques are often employed. Since the scope of data can be overwhelming or uncertain in this phase, attempts are made to reasonably reduce the overall scope during this phase - such as limiting the identification of documents to a certain date range or custodians.
A duty to preserve begins upon the reasonable anticipation of litigation. During preservation, data identified as potentially relevant is placed in a legal hold. This ensures that data cannot be destroyed. Care is taken to ensure this process is defensible, while the end-goal is to reduce the possibility of data spoliation or destruction. Failure to preserve can lead to sanctions. Even if the court ruled the failure to preserve as negligence, they can force the accused to pay fines if the lost data puts the defense "at an undue disadvantage in establishing their defense."[5]
Once documents have been preserved, collection can begin. Collection is the transfer of data from a company to their legal counsel, who will determine relevance and disposition of data. Some companies that deal with frequent litigation have software in place to quickly place legal holds on certain custodians when an event (such as legal notice) is triggered and begin the collection process immediately.[6] Other companies may need to call in a digital forensics expert to prevent the spoliation of data. The size and scale of this collection is determined by the identification phase.
During the processing phase, native files are prepared to be loaded into a document review platform. Often, this phase also involves the extraction of text and metadata from the native files. Various data culling techniques are employed during this phase, such as deduplication and de-NISTing. Sometimes native files will be converted to a petrified, paper-like format (such as PDF or TIFF) at this stage, to allow for easier redaction and bates-labeling.
Modern processing tools can also employ advanced analytic tools to help document review attorneys more accurately identify potentially relevant documents.
During the review phase, documents are reviewed for responsiveness to discovery requests and for privilege. Different document review platforms can assist in many tasks related to this process, including the rapid identification of potentially relevant documents, and the culling of documents according to various criteria (such as keyword, date range, etc.). Most review tools also make it easy for large groups of document review attorneys to work on cases, featuring collaborative tools and batches to speed up the review process and eliminate work duplication.
Documents are turned over to opposing counsel, based on agreed-upon specifications. Often this production is accompanied by a load file, which is used to load documents into a document review platform. Documents can be produced either as native files, or in a petrified format (such as PDF or TIFF), alongside metadata.