E-Discovery

E-discovery (eDiscovery) is a concept that includes electronic documents within the traditional document-centered discovery.

Its scope covers a wide range of electronically stored information (ESI, Electronically Stored Information), such as emails, messenger chats, Word, Excel, and PowerPoint files, databases, server logs, audio and video files, social media, and website data.

Because electronic documents have characteristics that make them easy to modify, delete, or conceal, metadata such as timestamps, access records, and revision history functions as key evidence, and the review extends beyond the simple submission of documents to the flow of how data is created, stored, and changed.

One case that had a decisive influence on the establishment of the e-discovery system is the 2002 U.S. case Zubulake v. UBS Warburg LLC.

At the time, the plaintiff in that case filed suit alleging wrongful termination due to gender discrimination, and requested relevant email evidence from the defendant.

In response, the court clearly recognized the evidentiary value of electronic documents, even though this was before the e-discovery procedure had been formally introduced.

However, even though litigation was foreseeable, the defendant company neglected its duty to preserve evidence by deleting emails that could become unfavorable evidence and by failing to recover them from backup data.

As a result, the court imposed sanctions for the spoliation of evidence and recognized an adverse inference, and this had a significant effect on the final determination of damages.

This clearly showed that if a company does not preserve electronic evidence in a timely manner, it can bear enormous liability for damages and procedural disadvantages.

A leading technology adopted to review large volumes of electronic evidence efficiently is Technology Assisted Review (TAR), also known as predictive coding.

In this method, an expert such as an attorney selects a subset of documents and classifies them as ‘relevant/not relevant’ or ‘privileged/not privileged.’ This sample data is used to train an artificial intelligence model, which then automatically analyzes the remaining large body of material and prioritizes documents with high relevance for extraction.

The process is structured so that the algorithm learns the legal judgment criteria of the expert.

As a result, documents directly connected to the core issues can be identified quickly among vast amounts of data, and review time and cost can be reduced substantially while accuracy is maintained.

After data collection, the material must go through processing steps such as deduplication, email threading, format conversion, and metadata cleansing.

Metadata, in particular, functions as core information that can reconstruct the sequence of events, including the author, the time of modification, access records, and storage paths.

The gap between when a file was created and when it was actually reported, the access records of a specific user, and traces of external storage device use can serve as important clues for assessing the intent and deliberateness behind an event.

For this reason, an integrated approach that combines technical analysis capability with legal interpretation is needed.

Another key element in the e-discovery process is the management of privileged documents.

Attorney-client privilege, work product, and similar materials must be excluded from production, and a failure to screen these properly may expose the entire defense strategy.

Therefore, during the document review stage, privilege should be reviewed alongside relevance, and a privilege log should be prepared for privileged documents and submitted to the court.

In addition, establishing a production strategy that conforms to the format required by the court (TIFF, PDF, Native, etc.) is also important.

From the point at which litigation or a regulatory investigation is reasonably anticipated, a company bears an obligation to preserve relevant material.

This is referred to as a Legal Hold, and if a company misses the relevant point in time or provides notice only as a formality without exercising actual control, the court may find spoliation of evidence and impose measures such as adverse inferences, sanctions, or increased damages.

In the case of global companies, the data management systems of the overseas headquarters and the domestic branch are often separated, so unexpected procedural disadvantages may occur unless the scope of preservation and the responsible party are clearly defined.

In most cases, the data collected and transferred during the eDiscovery process includes personal information.

At this point, restrictions on cross-border transfer, the principle of minimal collection, and the duty to notify data subjects under personal information protection laws of each country, such as the GDPR and PIPA, may become an issue.

Even when there is a production order from the court, personal information regulations are not uniformly waived, so prior legal review is indispensable.

eDiscovery can require enormous costs depending on the volume and scope of the data.

When the response is delayed or proceeds without a strategy, even unnecessary data is collected and reviewed on a broad scale, and costs increase exponentially.

Therefore, it is important to set the scope strategically at the early stage through issue-focused scoping (Early Case Assessment).

Responding after a dispute arises is important, but building an information management framework at the stage before that determines the risk.

Establishing a document retention policy, building a data map, aligning standards for managing collaboration tools and messengers, and coordinating backup policies are key factors that determine the efficiency of future eDiscovery responses.

As soon as litigation or an investigation is anticipated, the relevant officers, employees, and systems should be identified, and a Legal Hold notice should be issued.

At the same time, the scope of the data should be specified, and preservation measures should be implemented in cooperation with the internal IT department and outside experts.

The adequacy of the initial response has a direct effect on the court’s later assessment of credibility.

The entire process should be managed in an integrated manner, from forensically sound collection that ensures integrity, through processing, TAR-based review, and privilege review, to the determination of the production format.

When each stage operates in isolation, strategic consistency may break down, and this may work unfavorably for the litigation outcome.

Daeryun Law Firm operates a Digital Forensics & eDiscovery Division within its AI and Data Intelligence Group.

Through this division, it carries out the entire process of collecting, preserving, analyzing, and producing electronic evidence required for international litigation, investigations by overseas regulators, and large-scale internal investigations in an integrated manner.

It securely acquires data in a forensically sound manner from various media such as PCs, servers, the cloud, and mobile devices, systematically screens for relevance and privilege through deduplication, metadata cleansing, and TAR-based document review, and strategically supports production in the format required by the court.

In addition, drawing on integrated response capabilities that encompass the design of structures for fulfilling the evidence preservation duty and the review of data governance, it assists companies in converting electronic evidence risks into a controllable area.

Together with a corporate legal affairs attorney, you may prepare proactive reviews and a systematic response strategy in advance of international litigation and the global regulatory environment.