Electronic discovery is also known as e-discovery or ediscovery is the discovery conducted in legal proceedings such as government investigations, litigation, or Freedom of Information Act requests, where the information is in electronic format. Any discussion on e-discovery has to start with a very popular concept EDRM- Electronic Discovery Reference Model.
EDRM model is so ubiquitous it practically functions as a logo for the entire e-discovery industry. This model was created in 2005 by e-discovery experts, George Socha and Tom Gelbmann, to address the lack of standards in the e-discovery market.
In this article, we will cover the following topics:
- What is EDRM?
- Stages of EDRM.
- E-discovery Process Influencers.
- EDRM Limitations.
What is EDRM?
EDRM is a framework that outlines the standards for recovery and discovery of any digital data. This represents the conceptual view of the e-discovery process, not a literal or waterfall model. This model is designed to serve as guidance for assimilating and gathering electronic data during the legal process, including criminal evidence discovery. It consists of 9 distinctive stages that outline what eDiscovery activities should look like during an investigation.
Stages of EDRM –
The EDRM model features nine distinctive e-discovery stages connected by the arrows to indicate the sequential and iterative nature of the e-discovery activities.
Let’s look at the 9-stages of the model:
- Informatation Governance: This stage involves the management of information right from its creation until it’s destruction. Information governance creates a foundation for how data will be handled and managed prior to the onset of any litigation. This stage involves the comprehensive management of data through a set of procedures, policies, and processes. EDRM has created a separate model dedicated to Information governance, which is known as the Information Governance Reference Model(IGRM).
- Identification: This stage involves the identification of potentially relevant ESI- Electronically Stored Information, once the litigation is anticipated. This means locating the potential sources of ESI, determining its scope, breadth, and depth.
- Preservation: This stage involves the preservation of the located ESI, ensuring that it is not spoliated and kept intact so that it is available for later stages of the e-discovery process. ESI needs to be protected against inappropriate destruction and alteration.
- Collection: As the name suggests, in this stage ESI is collected for further use in the discovery process like Processing, Review, etc. here preserved information is consolidated into a protected and accessible repository.
- Processing: Processing involves reducing the volume of the collected ESI and converting it, if required, to forms more useable and suitable for review and analysis. The repetitive and duplicate information is culled down in this stage.
- Review: Review of the processed information is done for both relevance and privilege. The review stage is often outsourced to law firms or specialized vendors. It is the most costly and time-consuming stage of e-discovery.
- Analysis: In this stage, the data is sorted according to the topics it concerns, enabling the discernment of patterns and overall context. ESI is evaluated for context and content, including key patterns, topics, discussion, and people.
- Production: In this stage data is provided to the opponent in the requested form and according to the agreed delivery schedule and method. Up to this stage, the data should have been culled so that it is not cumulative or duplicative, reviewed thoroughly for privilege and relevance, and organized.
- Presentation: In this stage ESI is displayed before the audiences like at depositions, hearings, trials, etc especially in native forms like- creating videos, tutorials, etc & near-native forms, to elicit further information, validate existing facts or positions.
E-Discovery Process Influencers –
Let’s have a look at a few of the factors that influence the e-discovery process include:
- Size and Nature of the Company: Larger companies have to deal with a lot of litigations. Thus, these companies tend to have more formal processes around e-discovery since demands are more routine than a company that only deals with a handful of lawsuits a year.
- Industry: E-discovery is not all about litigations. Companies like finance or energy, are frequently compelled to turn over ESI as a part of government audits and investigations and will thus need processes for handling such requests.
- Data Infrastructure: A company’s e-discovery process is tied to the nature of the corporate systems and data repositories. Answers to questions like- Are data centralized or widely dispersed? Are there any dedicated internal IT resources to handle e-discovery tasks? will help define the ultimate e-discovery process.
EDRM Limitations –
While EDRM is a widely used and accepted model but it does not come without shortcomings. It is very important to keep in mind these key points:
- The EDRM is a framework and not a process or workflow: EDRM is a great starting point for any company that is looking to define an Internal Process. But its utility is very limited, given all the complexities, resource demands, sub-tasks that comprise each individual stage.
- Technology advancements have rendered EDRM outdated: EDRM reflects an era of e-discovery ‘point tools, ‘ systems that served very limited and specialized purposes. Time has changed. Today there are single software systems available that address all the functions addressed by the EDRM in a more streamlined, consolidated fashion, effectively challenging the sequential nature of the EDRM.
- Some important e-discovery processes are missed out of the EDRM: Another limitation is the exclusion of some key e-discovery processes like the concept of early case assessment (ECA), whereby a preliminary analysis of the ESI is made in the early stages of a matter, is not covered in the EDRM model. Similarly, Legal holds, which is clearly a component of the preservation stage is absent from the model.
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