7 minutes reading

The EDRM: Why Corporate Counsel Should Rethink The Process In 2022

For many years, the Electronic Discovery Reference Model (EDRM) has set the standard for a common terminology and structure for eDiscovery, investigations, and information governance teams. 

However, as eDiscovery has continued to mature, perspectives on the EDRM have changed. Based on the way that lawyers handle matters today, it’s clear that eDiscovery isn’t a monolithic, linear process that flows straight from data collection through to document production. Instead, the EDRM should be viewed as a series of complex steps that may be iterative and nonlinear. 

As this article will reveal, the old, sequential eDiscovery model of collection, followed by export, review, and production, one step at a time, is no longer practicable. 

Contents 

What is the ultimate goal of the EDRM?
What is the Electronic Discovery Reference Model (EDRM)?
What are the steps of the Electronic Discovery Reference Model?
Why should corporate counsel rethink the EDRM process?
How should corporate counsel approach the EDRM? 

What is the ultimate goal of the EDRM? 

The EDRM, the organization that developed the EDRM diagram, is “a community of e-discovery and legal professionals who create practical resources to improve e-discovery and information governance.” The organization was launched to address a lack of standards and guidelines governing eDiscovery. The organization consists of nearly 300 organizations, including service and software providers, law firms, industry groups, educational institutions, and corporations

In addition to the EDRM diagram, the EDRM has launched the Information Governance Reference Model, the Metrics Model, and the Privacy and Security Risk Reduction Model. It also offers a variety of tools, including budget calculators, a security audit questionnaire, and an eDiscovery maturity quiz. 

What is the Electronic Discovery Reference Model (EDRM)? 

The EDRM model is a widely accepted eDiscovery framework. Created in 2006 by eDiscovery experts and consultants George Socha and Rob Gelbmann, the EDRM is designed to reflect the nine key steps of eDiscovery. In our view, it’s a starting point for understanding the eDiscovery process

eDiscovery - EDRM Framework

Copyright @2020, EDRM Global, Inc., Creative Commons Attribution 4.0 International, edrm.net

Early on, the model consisted of eight stages: identification, preservation, collection, processing, review, analysis, production, and presentation. In 2016, the model was revised to add a preliminary stage for information governance. 

The current version of the EDRM (version 3.0) consists of eight rectangles for the original stages of eDiscovery. The information governance stage is represented as a circle to show that every eDiscovery process should start and end with sound information governance. Each stage is connected to the next by a colored line ending in an arrow, representing what the EDRM calls a “consensus view” of the typical eDiscovery workflow. 

Each stage is connected to the main line running beneath the entire diagram to illustrate that eDiscovery is often iterative, so review teams may have to revert to an earlier stage at any point in the process. A line also connects the final stage, presentation, back to information governance, to signify that no eDiscovery process is ever complete until it loops back to information governance. 

At the bottom of the diagram are two bold words in triangles: “VOLUME” on the left and “RELEVANCE” on the right. According to the EDRM, these words reflect the two core values driving most eDiscovery projects. As for volume, the EDRM suggests that a legal team should be able to reduce the volume of electronically stored information (ESI) as it progresses through the model. The goal is to reduce the volume from potential terabytes of data to as few files as possible for production. And teams should also find that throughout the process, the percentage of relevant ESI that they handle increases as they winnow out nonrelevant information. 

What are the steps of the Electronic Discovery Reference Model? 

Currently, the EDRM diagram consists of 9 stages: 

1. Information governance 

The EDRM views information governance as the foundation for effective eDiscovery. Sound information governance consists of a series of policies, procedures, and controls to help organizations manage their data, from the time it is created until the time it is destroyed. 

2. Identification 

Identification requires legal teams to search the organization’s information repositories and interview document custodians to pinpoint data sources that are potentially relevant to a matter. 

3. Preservation 

ESI must be stored in a forensically sound manner for processing and review. To achieve this goal, the legal team must implement a legal hold, which informs data custodians that they should save all of their potentially relevant information. A legal hold also suspends any information governance and records retentions protocols that might otherwise purge or alter data. 

4. Collection 

All potentially relevant data must be gathered using defensible, forensically sound techniques. Metadata must be preserved and collected along with their data. 

5. Processing 

Processing is the use of technology and analytics to prepare the data for review and analysis. For example, some tools may reduce the volume of ESI by eliminating system files, duplicates, and irrelevant information. Other tools, such as concept clustering, will group data by common themes and keywords. 

6. Review 

Review is studying the collected data to determine whether it is responsive to the legal matter at hand. If so, the data should be reviewed for the attorney-client privilege, the work-product doctrine, and other sensitive information, all of which should be redacted and logged before production. 

7. Analysis 

In this stage, the relevant ESI is studied to understand key patterns in the case, develop case theories, and formulate strategies for discovery as well as the entire case. Analysis isn’t a one-time stage; it should occur throughout the entire eDiscovery process. 

8. Production 

In this penultimate stage, the responsive, nonprivileged ESI is shared with the party(ies) requesting its production. In so doing, the producing party should follow any agreed-upon discovery protocol, court orders, and procedural rules. 

9. Presentation 

Presentation is the use of data in the courtroom or other legal proceedings. 

Why should corporate counsel rethink the EDRM process? 

In-house counsel have traditionally thought of eDiscovery as a sequential process. But three critical shifts have happened in recent years that render eDiscovery anything but linear. 

First, the nature of data has changed significantly. In the past, data was often structured in a standard “family” format, with email parents and attachment children. Today, the rise of collaboration and chat platforms have created new workflows and, with them, new, fluid, and informal data formats. As a result, the relationships between data are more complex. 

For example, instead of documents being passed back and forth via email for revision, lawyers today may work simultaneously on a document through the cloud, post updates about it on a collaboration tool or chat platform, and email copies of the document back and forth. To figure out the full story of what happened during litigation or an investigation, counsel must study the relationships between data sources to understand how data ties together. 

Second, cloud-based and Software as a Service (SaaS) platforms have proliferated. IT departments used to control what software was installed and when and how it was updated. Now cloud providers manage that process and roll out updates more frequently, sometimes without notice to the organization. Legal teams must address these stages throughout the EDRM. 

Third, eDiscovery technology capabilities have become more advanced. From analytics to artificial intelligence, organizations are better able to handle data at scale than ever before. Legal teams can find data more quickly and learn from decisions in past cases, making more accurate decisions on data and getting insights that speed their eDiscovery processes from start to finish. 

For these reasons, organizations have to rethink how eDiscovery works. Each step of the EDRM is complex and depends mightily on the data source in question. Every decision made at every step creates a “choose your own adventure” of what will happen next, and those next steps are often nonlinear. Sometimes review teams will work concurrently with collection or processing. Sometimes review will pause because a new data source has come to light. Whatever the reason, the traditional model of sequential handling of data, from one step to the next in the EDRM, has become largely obsolete. 

How should corporate counsel approach the EDRM? 

We suggest that an agile mini-EDRM framework makes sense in many modern settings. Here, organizations would prepare workflows for each data source, starting with preservation and continuing through collection, processing, and review. This structure would enable practitioners to respond nimbly when new data sources arise, no matter which stage of the EDRM they’re in. 

To update the EDRM for today’s complex data environment, corporate counsel should take these steps: 

1. Retain institutional knowledge 

Continuity amid change is essential. If you have to start from scratch with each new data source or challenge, you’ll fall too far behind, given today’s diverse and extensive data volumes. Make sure your staff and external partners understand your organization’s data architecture and eDiscovery workflows

2. Eliminate silos 

With iterative and interdependent eDiscovery stages, organizations must keep the lines of communication open so they fully understand the downstream implications of their workflows and decisions. 

3. Test the impact of your workflows 

To ensure your eDiscovery workflows are forward-thinking and not reactive, test how they affect your underlying platforms and apply changes using a feedback loop. 

4. Automate when possible 

Predictability and repeatability are the keys to defensible eDiscovery processes. Automating workflows reduces the risk of inconsistency. Plus, it will also help you improve your efficiency, lowering your costs. 

5. Ask for help 

If you’re facing a problem in one stage of the EDRM, one of your peers or your external partners has likely faced a similar challenge before. Other people will be glad to help you, and you’ll likely be able to return the favor in the future. 

ZyLAB Legal Discovery Platform is designed to help organizations manage eDiscovery from start to finish, in a single platform powered by analytics and artificial intelligence technology. ZyLAB One enables legal teams to quickly reduce their data volumes as they progress iteratively through the stages of eDiscovery, expediting their results and reducing their costs. Contact us today to learn more. 

Over to you

Do you also think that in-house counsel should rethink the EDRM framework? If so, how would you approach it? Please feel free to reach out to me on LinkedIn. I would love to hear your thoughts.