It wasn’t too long ago that the gathering of evidence consisted mostly of talking to people, examining physical objects and reviewing paper documents.
That has changed dramatically. Law firms must now routinely navigate through massive amounts of electronically stored information (ESI) in order to assess the viability of cases, negotiate in an informed manner and optimally prepare for trial.
The Electronic Discovery Reference Model (EDRM) is essentially a nine-phase workflow through which ESI is transformed from raw material to legally useful material. These phases are:
Information governance: This is where digital content originates. In some cases, that content will be well organized and indexed. In others, it may be highly chaotic. EDRM provides a separate detailed model (the Information Governance Reference Model) for this phase to help firms be more proactive about accurately and efficiently fulfilling future e-discovery requirements.
Identification: In this phase, law firms attempt to identify potential sources of relevant information. This is typically done through interviews with key players to identify what type of records they have that may be relevant. Because the scope of potentially relevant data may be uncertain in the early phases of a legal dispute, identification teams must have a process in place for responding to change and capturing new information as a dispute unfolds.
Preservation: This phase is necessary to ensure that data is not destroyed or altered before it fulfills its legally appropriate use. When the duty to preserve data is triggered, it is particularly important to isolate and protect potentially relevant content in ways that are both legally defensible and credibly auditable in order to mitigate associated operational and legal risks.
Collection: This is the actual acquisition of information that is potentially relevant, as determined in the identification phase of the e-discovery process. Here, too, execution must be legally defensible and credibly auditable — as well as appropriately targeted, in order to avoid both the costs and the potentially actionable problem of excessive collection.
Processing: Because data can arrive from collection in all kinds of formats and files, it is typically necessary to convert, extract or otherwise process it so it can be readily used throughout subsequent phases of discovery. Some individual files or emails may also have to be extracted from larger containers in order to ensure defensible reduction of data that will be exposed going forward. This is also the phase where metadata is cataloged to support the appropriate handling of data as discovery continues.
Review: The review phase gives the legal team a good initial understanding of the content available so its members can appropriately organize, categorize, index and cull it. This is also the phase where legal teams can determine if there are privileged communications in the content mix that must be redacted or if foreign language documents require a translation. An effective review phase will help reduce costs and mitigate risks throughout the rest of the process.
Analysis: In this phase, the legal team can begin to determine its litigation readiness and define the measures needed to optimize that readiness. This can include a determination of the additional data sources, EDRM skills and technologies necessary to equip the legal team with all the information it needs to achieve the best results. This phase is also typically where projected ESI-related costs are considered and weighed in relation to the economic value of the case at hand.
Production: The goal of the production phase is to deliver ESI as usable media in a manner that is compliant with both legal mandates and any agreements with other parties. Of particular relevance are the Federal Rules of Civil Procedure, which under Rule 26(f) address “issues about disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”
Presentation: This is when content is actually used for one of its primary purposes — which can generally be categorized as enabling better understanding of the facts of the case, using facts to draw out more information from someone involved in the case or persuading another party about the case through fact-based argument. This requires a presentation of content that is clear, credible and legally sanctioned.
Interestingly enough, while the EDRM diagram flows chronologically from left to right, a suggested best practice is actually to start with at least some conception of presentation before initiating the EDRM process. That way, each step in the process can be executed to lead to a desired outcome.
For more information on the Electronic Discovery Reference model, read the white paper “EDRM: Streamlining Legal Practice.”