Extract from Cassandre Coyer’s article “E-Discovery By Design: An Impossible Aim, or a Growing Reality?”
The U.S. approach to e-discovery is perhaps best encapsulated by one key principle in its Federal Rules of Civil Procedure: a party must preserve documents when it reasonably anticipates litigation.
Most third-party tools have become effective at helping professionals preserve, then collect and produce evidence from a variety of data sources. Still, the delay between litigation notices and when discoverable evidence actually gets collected often leads to significant data loss or spoilage.
This challenge, coupled with increasing data governance requirements from regulators and multiplying threats of data breaches, is leading to the rise of a tentative solution: e-discovery by design. Similar to privacy by design, this concept suggests that e-discovering requirements—whether for internal and external investigations or litigation—should be incorporated into the design of a system or product that companies rely on.
A successor to privacy by design, this new approach is becoming more widespread, especially with some of the biggest providers of enterprise tools adding e-discovery capabilities into their offerings. Still, some of these solutions can be limited, underused and don’t always cover the entire Electronic Discovery Reference Model (EDRM). Add to that the proliferation of new data sources, and a true e-discovery by design framework may be difficult to achieve.
