Before the Electronic Discovery Reference Model (EDRM) was created in 2005, there was no formalised model that could be followed during the eDiscovery process. Electronically Stored Information (ESI) had begun to dominate the discovery and document review process, but legal and review teams had no clear direction in terms of best practice.
Created by Tom Gelbmann and George Socha to improve eDiscovery standards, EDRM changed this. Socha and Gelbmann identified and outlined nine distinct stages and captured the eDiscovery activities in each of them.
Today, the EDRM model is widely used and very well known, and, as an organisation, EDRM plays an important role in continuing to provide models and structures for eDiscovery and electronic document review (EDR) best practice and governance.
Importantly, EDRM is not a prescriptive model aimed at telling professionals exactly how they should manage the document review and eDiscovery process. Instead, it should be used as a basis for discussion and analysis. The creators themselves describe the EDRM diagram as representing a conceptual view of the eDiscovery process, rather than a linear, literal, or waterfall model. They advise that teams may engage in some but not all of the steps outlined in the diagram, or even carry the steps out in a different order.
How these steps are used therefore varies from team to team. It’s also worth noting that across the nine stages there will be different teams involved. For example, the team who identifies, collects and preserves data will not necessarily conduct the review process. Capturing the entire process in one diagram gives teams a full view of the process however, and where their activities impact other stages.
The diagram also shows that EDRM is an iterative process. Some steps may be repeated numerous times while the team hones in on a more precise set of results. This is particularly true during the document review process and the analysis stage, where more information allows teams to identify the most relevant information for their legal case. Teams might also cycle back to earlier stages as they refine their approach or as new data emerges.
Image Source: EDRM
The 9 EDRM stages
Information Governance: This stage lays the foundation for all other activities in the eDiscovery and document review process. Electronically Stored Information (ESI) must be correctly handled, managed and stored from the moment it is created right through to when it is erased or destroyed. This involves adequate procedures, policies, and processes that adhere to all relevant local and international regulations and it is a step prior to any legal proceedings taking place – however, without adequate Information Governance in place it is very difficult for organisations or legal teams to respond to a legal hold or request for information.
Identification: Before relevant ESI can be collected once a legal case is expected, it is critical to determine the scope, depth and breadth of the ESI required for the case. The correct data will therefore need to be identified.
Preservation: Key to eDiscovery and EDR is that the identified and located data is protected against unacceptable alteration or destruction (also known as spoliation). All relevant data must be available for the later stages of the eDiscovery process, and as we’ve mentioned, teams will often go back to an earlier stage as well.
Collection: Before ESI can be processed and reviewed, it must be collected. This stage ensures that preserved information is consolidated into a protected and accessible repository. Technology platforms are an important element of this stage, as where and how data is stored is as important from a governance and audit-trail perspective as which data is preserved and stored. This is an area where LexTrado employs internationally recognised and sophisticated solutions.
Processing: The enormous volume of data that represents a legal case, as well as the multiple structured and unstructured formats that data takes, makes it critical to be able to reduce ESI and convert it into formats more suitable for review and analysis. This is the stage where duplicate and repetitive information is also culled down.
Review: Electronic document review (EDR) is the crucial stage where ESI is evaluated for relevance and privilege. It is notoriously the most expensive phase of the entire eDiscovery process because it is so time consuming. It is also an important stage because the ability to identify which information is relevant (and which should be labelled as privileged) will impact the success of a legal strategy or case. Technology assisted review (TAR) services, can help with email threading, near-duplicate analysis, concept clustering and searching, as well as predictive coding and relative assisted reviews during this phase.
Analysis: All ESI must be analysed for key patterns, topics, people and discussions. This is important to place data in context and to sort it into associated content.
Production: During a legal case, data must be supplied to the opposing legal team in a requested format and according to agreed delivery methods and schedules. By this stage, data should have been culled to remove all duplicated content and privileged content and organised through the review process.
Presentation: There are many stages in legal proceedings where ESI will be displayed, including depositions, hearings and even trials. How ESI is displayed will validate existing facts and legal positions.
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