If you’re even tangentially involved in the eDiscovery process, you’ve undoubtedly heard of the Electronic Discovery Reference Model (EDRM). But what exactly is it?
What is the EDRM?
The EDRM is a model that outlines the stages of the eDiscovery process. It consists of nine distinct stages that outline what eDiscovery activities during an investigation look like. Importantly, these stages do not always follow each other in the way shown. The EDRM illustrates an iterative process that can be repeated and completed in a different order.
And where does it come from? It’s been around since 2005 and was created by George Socha and Tom Gelbmann to improve eDiscovery standards. At the time, no formalized framework existed that clearly outlined the process, and the EDRM was an attempt to address this.
Today, it is incredibly well known and widely used, with many legal teams using it to guide their eDiscovery processes. That said, this isn’t a prescriptive model aimed at telling eDiscovery professionals exactly how they should manage the eDiscovery process. In the words of the creators themselves, “the EDRM diagram represents a conceptual view of the e-discovery process, not a literal, linear, or waterfall model. One may engage in some but not all of the steps outlined in the diagram, or one may elect to carry out the steps in a different order than shown here.”
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Interestingly, ownership of the EDRM changed hands in October 2019. The EDRM organization behind the model originally belonged to founders Socha and Gelbmann, but it was integrated into Duke Law in 2016. Now the EDRM organization has been purchased by Mary Mack and Kaylee Walstad. Mack is the former executive director of The Association of Certified E-Discovery Specialists (ACEDS) and Walstad is the former vice president of client engagement at ACEDS.
The Stages of the EDRM
With the history and description of the EDRM out of the way, let’s look at the nine stages of the model:
1. Information Governance
It goes without saying that if legal teams are going to be able to effectively process electronically stored information (ESI), this information first needs to be captured and stored properly. With this in mind, the EDRM places great emphasis on information governance—the comprehensive management of data through set procedures, processes, and policies. Information governance is such a crucial component of successful eDiscovery that the EDRM has created a separate model dedicated entirely to it. It’s called the Information Governance Reference Model (IGRM) and you can read our detailed blog post on it here.
Organizations are legally obligated to preserve any ESI that might be relevant to a legal matter. But knowing what information will end up being important isn’t always easy at the start of the eDiscovery process. With this in mind, the first stage of the EDRM is “Identification,” and includes any activities—such as case reviews and interviews—that assist in identifying key pieces of electronic information that are likely to be important to a case down the line.
Once crucial ESI has been identified, the next step is preserving that evidence for litigation. Failing to do so can result in what is officially known as spoliation—the tampering or destruction of evidence. One of the most common ways to preserve evidence and prevent spoliation is to place data on legal hold. By doing this, legal teams effectively “freeze” information and forbid IT (or any other department) from deleting that information.
Once evidence has been preserved by placing it on legal hold, legal teams now need to collect that information in a way that will allow them to use it throughout the legal process. For instance, what if a key piece of evidence is a conversation that happened between two employees on an enterprise collaboration platform? The legal team would need a way to collect this information and present it in a way that’s defensible, meaning that the authenticity of the data is beyond question.
The above takes us directly to the next stage, “Processing”. Collected evidence now has to be processed ahead of attorney review. This means “cleaning it up” by doing things such as deleting irrelevant data, converting files, and ultimately collecting it all in a single folder. Many organizations now make use of eDiscovery platforms like those offered by Exterro, Logikcull, and Relativity to simplify and streamline this process.
“Review” is not only one of the most important stages of the EDRM, it is also one of the most costly. Once all this ESI has been collected and processed, it has to be reviewed by legal teams to understand how it relates to the case at hand. With the average hourly rate of a lawyer being what it is, and modern legal cases easily containing 6.5 million digital pages, around 80% of litigation cost in the U.S. goes towards document review—a total of $42 billion a year!
As you’d’ expect, the “Analysis” stage involves evaluating ESI for particular use during a legal matter. This means looking at the content and context, and according to the EDRM itself, identifying “key patterns, topics, people, and discussion.” It should be added that, while analysis is its own distinct stage here, every component of the EDRM obviously involves its own form of analysis.
With crucial ESI identified and incorporated into a legal strategy, it’s time to produce this evidence in a way that makes it usable during formal legal proceedings. In other words, legal teams need to consider how they will present this evidence in a defensible way. With a social media or website post, for instance, the associated metadata would need to be provided in order to prove authenticity.
Once legal evidence has been produced, all that remains is presenting it during a legal proceeding like a trial or deposition. Just as ESI has started to dominate the discovery process, presentation has also shifted away from paper towards more digital presentation.
Understanding the Value of the EDRM
Here’s what eDiscovery vendor Exterro—and organization that itself has published a substantial nine-chapter guide on the topic—says about the EDRM:
“Sorry to burst the bubble of anyone who planned to print up a giant picture of the EDRM and proclaim to the rest of the company that the eDiscovery riddle has been solved. Don't get us wrong, the EDRM is a great starting point for any company looking to define an internal process. But its utility is very limited, given the complexities, sub-tasks, and resource demands that comprise each individual stage. That's where the real fun begins.”
Modern eDiscovery is far too complex for a model like the EDRM to completely solve. But it does act as a useful framework for any organization looking to get a handle on its electronically stored information. It assists an organization in understanding the demands of the eDiscovery process and realizing the importance of good information governance in facilitating it.
By studying the IGRM and EDRM in combination, an organization quickly starts asking itself some important questions:
- How are we balancing the retention and disposal of data to facilitate eDiscovery? Are we losing crucial evidence?
- How easy is it to place any particular piece of information on legal hold and ensure that it definitely will not be deleted?
- How easy is it for the legal team to produce ESI in a defensible format that conforms to legal rules of evidence? What tools do they have at their disposal?
- What sort of workload is eDiscovery placing on the IT department?
- How much are we spending on document review and how can we reduce that number?
In helping organizations ask these questions (and many more), the EDRM can be very useful in creating a more efficient legal team and greatly reducing litigation costs.
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