Effective eDiscovery has long been a difficult endeavor. The huge volumes of electronic data and the difficulty of finding and processing it are enough to drive a person crazy — and these hurdles are just the tip of the iceberg.
Recognizing the need for an improved process, Tom Gelbmann and George Socha created the Electronic Discovery Reference Model (EDRM) in 2005. While the goal was to improve order, this hasn’t always been the result.
This model was meant to formalize and standardize the eDiscovery process. Unfortunately, there have been difficulties throughout the history of EDRM. While there are a variety of tools specialized for each of the model's steps, there aren't many resources that allow eDiscovery teams to take on the process in a unified manner. Additionally, changes in the tech and legal landscapes demand a modern approach to the EDRM.
EDRM: What Is It Anyway?
The EDRM was meant to allow professionals to approach eDiscovery without a rigid and prescriptive procedure. Sounds enticing, doesn’t it?
This framework is a conceptual layout that provides nine separate stages that serve as a guide for the eDiscovery process. Since a primary goal is to avoid rigidity that could complicate matters, it’s not necessary to complete all EDRM Stages of Discovery in order to identify relevant data.
Still, it’s important to understand each of these steps:
1. Information Governance
In this stage, a thorough management of electronically stored information (ESI) collection and storage is carried out. The identification of potential sources of relevant ESI is necessary, and their extent, comprehensiveness, and coverage must be assessed.
2. Identification
When faced with a vast amount of electronically stored information that needs to be preserved for litigation purposes, determining which information will ultimately be pertinent to the case can be challenging. The identification process entails conducting reviews and interviews to pinpoint the ESI that is most likely to be significant and valuable to the case.
3. Preservation
After identifying the potentially relevant electronically stored information, preserving this data for litigation becomes a crucial task. Failure to promptly do so provides organizations with an opportunity to spoliate, which involves tampering with or destroying evidence. A standard approach to safeguarding and preventing spoliation is to impose a legal hold on all pertinent ESI.
4. Collection
At this stage, the legal team is responsible for gathering the electronically stored information — which can consume significant personnel hours and financial resources. The collection process involves retrieving every piece of digital evidence from diverse sources and presenting it in a way that can withstand scrutiny and be admissible in legal proceedings.
5. Processing
Collecting usually leads directly to processing, which concerns the preparation of evidence for attorney review. Processing involves “cleaning up” ESI by deleting irrelevant ESI, deduping files, OCRing images, indexing text, and the like. Similar to collection, processing can take a great deal of time and money — particularly if you have a vendor nickel-and-diming you every step of the way.
6. Review
The review stage is critical as legal teams meticulously analyze the ESI to ascertain its relevance to ongoing litigation. However, this process can be quite expensive, as it often demands a significant number of attorney hours. In fact, hourly legal fees for review alone amount to over $42 billion in the US each year.
7. Analysis
During this step, legal teams meticulously scrutinize each piece of ESI to determine its significance and applicability to ongoing litigation. The analysis involves evaluating both the content and context of the ESI, including searching for specific individuals, topics, patterns, and discussions within the data.
8. Production
After identifying the relevant ESI as part of the legal strategy, the next step is to produce and deliver it in a manner that is suitable and can withstand scrutiny. It's crucial to establish the authenticity of the ESI during this stage.
9. Presentation
This is the stage in which the produced ESI is presented to an audience during the legal proceedings to serve as evidence. This evidence is then used to help validate an argument, to elicit further information, and/or to persuade an audience. Digital formats for presentation are becoming increasingly popular over the traditional presentation of physical materials.
The EDRM Might Not Be Enough
While the EDRM Stages of Discovery sound great on paper, we all know by now that paper isn’t always trustworthy. In real-life situations, there are both challenges and limitations to the traditional process. One of the primary issues is the fractured nature of the procedure. Each stage often involves varying technologies, services, and sometimes even different teams.
In our recent Inside Voices session, Andrew Trout, Supervisor of Litigation at AmTrust Financial, spoke on the importance of centralization. With so many of these stages seemingly scattered, it’s difficult to perform effective eDiscovery. If you’ve worked in this field for even five minutes, this fact has likely already hit you like a ton of bricks.
When you add this to the cost and time required — along with the inflexibility and complexity of the process — the need for a modern EDRM becomes clear.
The Need for a Modern EDRM
Evolution within the legal and technological landscapes cannot be ignored. Many of these changes led directly to a need for a new approach to EDRM. For instance, the volume and complexity of data that must be managed and analyzed have increased significantly. New technologies such as cloud computing and artificial intelligence (AI) have also created new opportunities for improving the effectiveness and efficiency of eDiscovery.
The legal landscape has also undergone significant changes thanks to all those new data privacy laws and regulations that keep us up at night. Of course, none of these changes have gone unnoticed. That’s why many current EDRM tools will soon be updated with the release of EDRM 2.0. A modern approach to the Electronic Discovery Reference Model will carry many benefits — including increased efficiency, cost-effectiveness, and accuracy.
In fact, we’ve already seen several case examples of modern EDRM implementations take place. Going back to our chat with Andrew Trout, we see a professional who was able to modernize EDRM to fully automate a massive subpoena operation. Much of his success came from realizing the importance of adding technology to all EDRM Stages of Discovery. However, his continued focus on communication and collaboration tools were also integral components.
Key Components of the EDRM in the Age of AI
It’s important to realize that Andrew Trout’s success at AmTrust Financial wasn’t due to any unique circumstances at his company. He was able to recognize the key components of the EDRM in a world where discovery technology is becoming more and more powerful. eDiscovery professionals who understand these components can find the same level of success within their law firms or companies.
Here are the primary components that you’ll soon see eDiscovery software putting an increased focus on:
Automation
Automation is a key component of modern discovery tools, as it helps to streamline and simplify the eDiscovery process. Automated workflows can handle repetitive tasks such as data collection, redaction, and analysis. This frees up legal teams to focus on more complex tasks.
Artificial Intelligence
AI is increasingly being used in eDiscovery to help analyze and classify large volumes of data. Machine learning algorithms can be used to identify relevant documents, redact sensitive information, and categorize data based on relevance and importance. Soon, it'll be possible to have AI do the bulk of the tedious review work for you.
Cloud-Based Technology
Cloud-based technology has transformed the way eDiscovery is managed, allowing for greater scalability, flexibility, and accessibility. Cloud-based EDRM systems enable teams to collaborate remotely and share data securely, without the need for on-premises infrastructure.
Collaboration Tools
Collaboration tools such as annotations and data sharing are essential for modern discovery systems. These tools allow legal teams to communicate and collaborate in real-time, regardless of their location.
There’s no way around it: modern EDRM systems are characterized by automation, AI, cloud-based technology, and collaboration tools. These components help to streamline the eDiscovery process, make it more efficient and effective, and improve collaboration and communication among legal teams.
Choosing the Right Software to Cover the EDRM
When choosing the best software for your eDiscovery needs, it’s important to examine the unique requirements of your firm or company. In doing so, there are certain factors that should always be taken into consideration. Scalability and flexibility are two of the most important aspects to account for. After all, the rigidity of the traditional EDRM process is one of the primary hurdles to the framework being effective. If you’re not combatting that, what are we here for?
Being able to scale your needs and utilize software in ways that meet your firm’s distinctive obligations is vital. Ease of use and security are also essential requirements to cover the EDRM effectively. In the case of the former, tools that don’t simplify EDRM effectively neutralize any benefits you could hope to attain. And in a world where lax security can lead to judicial and regulatory penalties, you should always try your best to avoid the unemployment line.
Conclusion
The Electronic Discovery Reference Model was created to standardize the eDiscovery process, but the traditional model has proved inflexible and complicated. This has made it challenging to perform effective eDiscovery. The need for a modern approach to EDRM is evident. This can only be accomplished with eDiscovery tools — such as Logikcull — that account for the ever-evolving discovery needs in a constantly changing tech and legal landscape.
Let’s be real: a modern and innovative EDRM approach for effective data management cannot be overlooked. Otherwise, companies and firms will fall behind as eDiscovery needs become increasingly complex and demanding. Ultimately, a well-designed and well-executed EDRM process can help ensure that all relevant data is identified, preserved, and presented in a way that is defensible and legally admissible.
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Logikcull's approach to the Electronic Discovery Reference Model is highly innovative and unique. To fully understand its potential in handling the entire discovery process, request a demo with one of our product experts.
