As the e-discovery landscape grows more complex, practitioners must be prepared to look beyond the prototypical EDRM model towards consistent and repeatable checklists and workflows. Deploying these tools promotes discovery defensibility, ensuring completeness and accuracy amidst ever-expanding sources of data and new artificial intelligence technologies.
The EDRM Model
Whether they know it or not, most lawyers whose practice includes electronic discovery follow the Electronic Discovery Reference Model. The model outlines, at a high level, steps in the e-discovery process, from identifying, preserving and collecting discovery materials, to processing, reviewing, and producing relevant information.
Introduced in 2005, the EDRM model has withstood the test of time, and continues to provide a reliable framework for the discovery process. But the explosion of electronic data (by some estimates, we send 16 million text messages and 150 million emails each minute), together with the advent of new review technology like artificial intelligence that makes reviewing that data easier and faster, requires that we dig deeper. Using standardized processes at each stage of the EDRM model can help to ensure success.
Identification and Collection
Identifying and collecting potentially relevant materials at the outset set the stage for a defensible discovery process. At best, failing to do so could require going back to your data sources throughout the process to re-collect — a process that results in fractured or overlapping data and potentially an exasperated client. At worst, collection deficiencies could result in sanctions. The old adage "measure twice, cut once" applies, and practitioners should consider using checklists during the identification and collection phase.
To start, during the initial meeting with the client's IT personnel, lawyers should be prepared with a comprehensive checklist concerning possible data sources, ranging from the basics — the nature of the company's email and document management systems — to the details, such as the company's document preservation practices, whether backup sources will need to be accessed, and whether employees use other applications in their work. Counsel must also understand whether employees use company-issued laptops, and whether and how those laptops are backed up.
Given that almost every case now involves mobile data, lawyers must also be prepared to inquire as to the company's mobile device policies, including whether employees are issued phones or if the company has a "Bring Your Own Device," or BYOD program.
A simple checklist of all of these data sources and questions — which can also be used during interviews of individual custodians — can ensure no stone is left unturned.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
