ISO/IEC 27050-3:2020
(Main)Information technology — Electronic discovery — Part 3: Code of practice for electronic discovery
Information technology — Electronic discovery — Part 3: Code of practice for electronic discovery
This document provides requirements and recommendations on activities in electronic discovery, including, but not limited to, identification, preservation, collection, processing, review, analysis and production of electronically stored information (ESI). In addition, this document specifies relevant measures that span the lifecycle of the ESI from its initial creation through to final disposition. This document is relevant to both non-technical and technical personnel involved in some or all of the electronic discovery activities. It is important to note that the user is expected to be aware of any applicable jurisdictional requirements.
Technologies de l'information — Découverte électronique — Partie 3: Code de pratique pour la découverte électronique
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INTERNATIONAL ISO/IEC
STANDARD 27050-3
Second edition
2020-01
Information technology — Electronic
discovery —
Part 3:
Code of practice for electronic
discovery
Technologies de l'information — Découverte électronique —
Partie 3: Code de pratique pour la découverte électronique
Reference number
ISO/IEC 27050-3:2020(E)
©
ISO/IEC 2020
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ISO/IEC 27050-3:2020(E)
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ISO/IEC 27050-3:2020(E)
Contents Page
Foreword .v
Introduction .vi
1 Scope . 1
2 Normative references . 1
3 Terms and definitions . 1
4 Abbreviated terms . 1
5 Electronic discovery background . 1
6 Electronic discovery requirements and guidance . 3
6.1 Overview . 3
6.1.1 Structure of materials describing the process elements . 3
6.1.2 Cross-cutting aspects . 3
6.2 ESI identification . 4
6.2.1 Overview of ESI identification . 4
6.2.2 Objectives for ESI identification . 4
6.2.3 Considerations to avoid failures . 4
6.2.4 Requirements for ESI identification . 5
6.2.5 Guidance for ESI identification . 6
6.3 ESI preservation . 7
6.3.1 Overview of ESI preservation . 7
6.3.2 Objectives for ESI preservation . 7
6.3.3 Considerations to avoid failures . 7
6.3.4 Requirements for ESI preservation . 9
6.3.5 Guidance for ESI preservation .10
6.4 ESI collection .10
6.4.1 Overview of ESI collection .10
6.4.2 Objectives for ESI collection .10
6.4.3 Considerations to avoid failures .11
6.4.4 Requirements for ESI collection .13
6.4.5 Guidance for ESI collection .13
6.5 ESI processing .14
6.5.1 Overview of ESI processing .14
6.5.2 Objectives for ESI processing .14
6.5.3 Considerations to avoid failures .15
6.5.4 Requirements for ESI processing .16
6.5.5 Guidance for ESI processing .17
6.6 ESI review .17
6.6.1 Overview of ESI review .17
6.6.2 Objectives for ESI review .17
6.6.3 Considerations to avoid failures .18
6.6.4 Requirements for ESI review .19
6.6.5 Guidance for ESI review.20
6.7 ESI analysis .21
6.7.1 Overview of ESI analysis .21
6.7.2 Objectives for ESI analysis .21
6.7.3 Considerations to avoid failures .21
6.7.4 Requirements for ESI analysis .22
6.7.5 Guidance for ESI analysis.23
6.8 ESI production .23
6.8.1 Overview of ESI production .23
6.8.2 Objectives for ESI production .23
6.8.3 Considerations to avoid failures .23
6.8.4 Confirm forms of production .25
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ISO/IEC 27050-3:2020(E)
6.8.5 Requirements for ESI production .25
6.8.6 Guidance for ESI production .26
Bibliography .27
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ISO/IEC 27050-3:2020(E)
Foreword
ISO (the International Organization for Standardization) and IEC (the International Electrotechnical
Commission) form the specialized system for worldwide standardization. National bodies that
are members of ISO or IEC participate in the development of International Standards through
technical committees established by the respective organization to deal with particular fields of
technical activity. ISO and IEC technical committees collaborate in fields of mutual interest. Other
international organizations, governmental and non-governmental, in liaison with ISO and IEC, also
take part in the work.
The procedures used to develop this document and those intended for its further maintenance are
described in the ISO/IEC Directives, Part 1. In particular, the different approval criteria needed for
the different types of document should be noted. This document was drafted in accordance with the
editorial rules of the ISO/IEC Directives, Part 2 (see www .iso .org/ directives).
Attention is drawn to the possibility that some of the elements of this document may be the subject
of patent rights. ISO and IEC shall not be held responsible for identifying any or all such patent
rights. Details of any patent rights identified during the development of the document will be in the
Introduction and/or on the ISO list of patent declarations received (see www .iso .org/ patents) or the IEC
list of patent declarations received (see http:// patents .iec .ch).
Any trade name used in this document is information given for the convenience of users and does not
constitute an endorsement.
For an explanation of the voluntary nature of standards, the meaning of ISO specific terms and
expressions related to conformity assessment, as well as information about ISO's adherence to the
World Trade Organization (WTO) principles in the Technical Barriers to Trade (TBT) see www .iso .org/
iso/ foreword .html.
This document was prepared by Technical Committee ISO/IEC JTC 1, Information technology,
Subcommittee SC 27, Information security, cybersecurity and privacy protection.
This second edition cancels and replaces the second edition (ISO/IEC 27050-3:2017), which has been
technically revised.
The main changes compared to the previous edition are as follows:
— the title has been updated;
— the publication date of ISO/IEC 27050-1 has been updated.
A list of all parts in the ISO/IEC 27050 series can be found on the ISO website.
Any feedback or questions on this document should be directed to the user’s national standards body. A
complete listing of these bodies can be found at www .iso .org/ members .html.
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ISO/IEC 27050-3:2020(E)
Introduction
This document provides requirements and recommendations associated with the electronic discovery
process elements described in ISO/IEC 27050-1. The requirements and recommendations are expected
to be useful for both technical and non-technical personnel involved in some or all of the electronic
discovery activities. Additional materials are provided to help organizations better understand the
objectives associated with each electronic discovery process element and considerations to avoid
failures, which can mitigate risk and expense if electronic discovery becomes an issue.
Electronic discovery often serves as a driver for investigations, as well as evidence acquisition and
handling activities (covered in ISO/IEC 27037). In addition, the sensitivity and criticality of the data
sometimes necessitate protections like storage security to guard against data breaches (covered in
ISO/IEC 27040).
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INTERNATIONAL STANDARD ISO/IEC 27050-3:2020(E)
Information technology — Electronic discovery —
Part 3:
Code of practice for electronic discovery
1 Scope
This document provides requirements and recommendations on activities in electronic discovery,
including, but not limited to, identification, preservation, collection, processing, review, analysis and
production of electronically stored information (ESI). In addition, this document specifies relevant
measures that span the lifecycle of the ESI from its initial creation through to final disposition.
This document is relevant to both non-technical and technical personnel involved in some or all of
the electronic discovery activities. It is important to note that the user is expected to be aware of any
applicable jurisdictional requirements.
2 Normative references
The following documents are referred to in the text in such a way that some or all of their content
constitutes requirements of this document. For dated references, only the edition cited applies. For
undated references, the latest edition of the referenced document (including any amendments) applies.
ISO/IEC 27000, Information technology — Security techniques — Information security management
systems — Overview and vocabulary
ISO/IEC 27050-1:2019, Information technology — Electronic discovery — Part 1: Overview and concepts
3 Terms and definitions
For the purposes of this document, the terms and definitions given in ISO/IEC 27000 and
ISO/IEC 27050-1 apply.
ISO and IEC maintain terminological databases for use in standardization at the following addresses:
— ISO Online browsing platform: available at https:// www .iso .org/ obp
— IEC Electropedia: available at http:// www .electropedia .org/
4 Abbreviated terms
ESI Electronically stored information
ICT Information and communications technology
OCR Optical character recognition
5 Electronic discovery background
Electronic discovery is an element of traditional discovery and it is a process that typically involves
identifying, preserving, collecting, processing, reviewing, analysing, and producing electronically
stored information (ESI) that may be potentially relevant to a particular matter. The requirements and
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ISO/IEC 27050-3:2020(E)
recommendations provided in this document are in accordance with the electronic discovery concepts
described in the following clauses and subclauses of ISO/IEC 27050-1:
— ISO/IEC 27050-1:2019, Clause 3: key electronic discovery terminology;
— ISO/IEC 27050-1:2019, 6.2: electronic discovery issues and primary cost drivers;
— ISO/IEC 27050-1:2019, 6.3: general electronic discovery objectives;
— ISO/IEC 27050-1:2019, Clause 7: common ESI types, common sources and representations;
— ISO/IEC 27050-1:2019, Clause 8: description of the electronic discovery process and the process
elements.
ISO/IEC 27050-1 differentiates between generic actions such as "identifying" from the specific electronic
discovery process elements by preceding the names with "ESI" (e.g. ESI identification). Likewise, this
document follows this approach. ISO/IEC 27050-1:2019, Figure 1, shows all of the electronic discovery
process elements and the interrelationships between them (see ISO/IEC 27050-1:2019, 8.1, for a full
description).
Although the goal of electronic discovery is the same as with hardcopy document discovery — to
find and to produce information that is potentially relevant in a matter — the nature of electronic
information adds differing layers of complexity and opportunity, since ESI carries with it such elements
as metadata and requisite data processing and management functions that do not exist with paper. In
addition, the collection and processing of ESI for discovery presents challenges (e.g. data corruption,
password protection, encryption, indexing issues, inadequate keyword search, poor OCR) that can have
importance either to the viability or accuracy of the ESI produced to the opposing side or to the ability
to maintain provenance or chain of custody. Further, the escalating volumes of ESI typically created,
maintained and collected present challenges for consistency and accuracy in review.
This document addresses these challenges by:
— promoting common understanding of various concepts and terminology for electronic discovery;
— articulating objectives and risks inherent in the steps in the electronic discovery process;
— encouraging practical and cost-effective discovery by those tasked with managing ESI through the
process;
— providing guidance and best practices for those responsible for delivering electronic discovery
projects (e.g. legal practitioners, services providers, independent experts, courts, and any other
parties engaged in the process);
— identifying competency areas for those involved in electronic discovery;
— promoting the proactive use of technology to reduce costs and risks, while increasing efficiencies
throughout the discovery process;
— suggesting ways to avoid inadvertent disclosures of potentially privileged, confidential, or
sensitive ESI.
The overriding goal is to help organizations meet their electronic discovery goals (e.g. legal obligations,
business objectives, regulatory requirements).
While this document has been written with larger electronic discovery projects in mind, and therefore
covers aspects encountered in the majority of matters, it is not necessarily the case that all steps will
be required or proportionate to every matter. For example, in small matters, it can well be that a single
person manages and completes every aspect of the project, whereas larger matters can warrant the use
of separate individuals or even teams for each element of the electronic discovery project.
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ISO/IEC 27050-3:2020(E)
6 Electronic discovery requirements and guidance
6.1 Overview
6.1.1 Structure of materials describing the process elements
Each electronic discovery process element is addressed in a separate clause and each contains the
following:
a) an overview of the process element;
b) objectives for the process element;
c) considerations to avoid failures;
d) the requirements and guidance specific for the process element.
The order of the clauses in this document does not imply their importance or a particular sequence that
needs to be followed.
6.1.2 Cross-cutting aspects
Cross-cutting aspects are behaviours or activities that span multiple electronic discovery process
elements and need to be coordinated across the process elements.
— Planning. To be effective, most or all of the process elements need to be well planned from the
outset, with the specific objectives and conditions taken into consideration and with the resources
to be deployed readily available.
— Transparency. Implementation of the process elements often necessitates refinement and iteration
that have to be readily explained to interested parties. An effective process will be dependent on
transparency, as well as allowing for changes and for explanation later on.
— Documentation. The process elements need to be well documented, both for the purpose of
defending the scope and activities of the process elements down the line if they are challenged, and
for the purpose of improving the effectiveness and consistency of future implementations of the
process elements.
— Expertise. Certain kinds of specialized expertise and qualifications are necessary for each process
element to do the work and to meet any operative standards. This expertise can be associated with
the matter at hand, language, technology, the chosen tools or methods, or the quality assurance of
the results of applying those tools and methods.
— Informed. An effective electronic discovery process is dependent on the pertinent legal and subject
matter experts being well informed as to the purposes to be served by the relevant process elements,
the relevant requirements (e.g. operative, matter-specific, process-specific, etc.), and the landscape
of the ESI, as well as having an understanding of the subject matter, scope and timeframe that apply
to the situation in question.
— Adaptive. Almost all electronic discovery projects begin in a state of imperfect knowledge when
requirements and definitions are not yet fully specified and the ESI landscape is not yet fully
mapped. Adaptability is therefore an essential feature of an effective electronic discovery process
in general.
— Use of technology. The effectiveness of an electronic discovery project can be dependent on how
it avails itself of the tools and methods appropriate to the general approach taken in the various
process elements; the specific tools and methods can vary from one approach to the other, but most
approaches can benefit from the appropriate application of technology.
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ISO/IEC 27050-3:2020(E)
6.2 ESI identification
6.2.1 Overview of ESI identification
In this subclause, the objectives of ESI identification, the issues inherent in that process element, and
considerations to avoid failures are discussed.
ESI can need to be identified and preserved in an organization for a number of reasons, including
reasonable anticipation of a lawsuit, receipt of a pre-litigation preservation request, a request to inspect,
a demand letter, a cease and desist letter, a cure notice, or even a discussion with an opposing party or
its counsel. In some jurisdictions, courts, legislatures, or government regulators have developed rules
concerning how organizations identify ESI, particularly for purposes of civil and criminal proceedings,
investigations and audits. As a result, it is advisable for organizations to understand when a duty (or
need) to preserve is triggered and any steps that can have been mandated or accepted as best practices
to identify and preserve relevant ESI in jurisdictions in which they do business.
ESI identification is the element in the electronic discovery process in which information that can be
potentially relevant to a matter is specifically located for potential preservation or collection.
6.2.2 Objectives for ESI identification
As defined in ISO/IEC 27050-1, ESI identification is the “element of an electronic discovery process
focused on locating potential sources and the criteria for selecting potentially relevant electronically
stored information.” A primary objective of ESI identification often is to identify key departments,
individuals, custodians, and locations of ESI or ESI sources that can reasonably lead to the discovery of
potentially relevant information related to the subject matter in question. In order to undertake such
ESI identification, an organization needs to be able to:
— understand the nature of the subject matter in question;
— identify individuals who may have or know relevant information;
— know the potential ESI sources likely to contain such information;
— identify potentially relevant information with a level of accuracy appropriate to the circumstances;
— identify potentially relevant information within a timeframe that is consistent with the overall
electronic discovery objectives; and
— accomplish the above tasks with a level of resource utilization that is proportionate to what is at
stake in the matter that has necessitated the effort.
6.2.3 Considerations to avoid failures
The primary issues associated with ESI identification are the following:
— Destruction of ESI by untimely delay. A delay in locating potentially relevant ESI can result in
the inadvertent destruction of the ESI. Such inadvertent destruction can occur if custodians have
not been properly advised to refrain from deleting ESI related to relevant subject matter, or when
there is, by company policy, a routine deletion policy in place for certain data stores (e.g. a 90-day
retention cycle for e-mail).
— Incomplete or erroneous identification of ESI. An incomplete or erroneous identification
of custodians and sources can result in delays or cost-overruns and, in the context of legal
proceedings, legal consequences if a late production unreasonably hinders a case. Defensibility of
ESI identification can be questioned and, depending on the jurisdiction, documentation and quality
control procedures can be scrutinized.
The issues identified above can be managed via the implementation of a process that makes well-
coordinated use of appropriate individuals, tools, methods, and expertise in order to meet the defined
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ISO/IEC 27050-3:2020(E)
ESI identification objectives. More specifically, the issues can be managed by the implementation of an
ESI identification process that adheres to the following principles:
— Organized. Certain kinds of specialized expertise can be called for in ESI identification, whether
subject matter experts or the ICT personnel who manage implicated ESI or those with knowledge
to query systems to assess system relevance. A plan that identifies from the outset the kinds of
expertise required and contains interview templates and other tools to document the information
learned can be very helpful. An organization would be wise to identify a team of key people that
need to be involved in discovery project management, including ESI identification. These individuals
typically include corporate legal counsel, outside counsel, ICT personnel, records management
personnel, data custodians, human resources personnel, business leaders, and service providers/
electronic discovery consultants.
— Planned. To be effective, an ESI identification process needs to be well planned from the outset,
with the specific objectives and conditions taken into consideration and with the resources to be
deployed readily available. Being proactive and gathering timely information about custodians and
existing systems can enable an organization to meet the expectations of the courts and regulators.
An effective ESI identification process is typically well informed by individuals with the appropriate
expertise who are aware of the requirements of identifying and collecting potentially responsive
ESI. A well-planned ESI identification makes provision for quality-control assessments that monitor
progress and completeness of the plan as it is being executed. An effective plan also provides
timelines and cost targets that can realistically be met and are appropriate to the matter.
— Transparent. Implementation of ESI identification often necessitates refinement and iteration
that may have to be explained to interested parties. An effective process will be dependent on
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