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The Electronic Discovery Reference Model should be read from left to right; from Information Management to Presentation. The nine stages are set out below:
As you move through the various stages, the volume of documentation (in blue at the bottom of the model) decreases and the relevance (in aqua at the bottom of the model) of the documentation increases. This is largely due to the processing, analysis and legal review stages which are explained further below.
It is very important to point out that this is not a step-by-step guide; it is a representation of the eDiscovery process. Any given project may follow all of the steps in the model, could follow the steps in a different order or perhaps repeat some of the steps. In other words, the EDRM can be repeated and/or completed in a different order. Many legal teams use EDRM to guide their eDiscovery processes. Whilst is a useful reference, each stage can be very complicated and case specific and therefore, we have set out some further guidance on the stages of EDRM below.
This is, basically, getting your electronic house in order to mitigate risk and expense should eDiscovery become an issue. For legal review teams to be able to effectively process Electronically Stored Information (ESI), that information needs to be captured and stored properly. The EDRM places significant emphasis on information governance.
This is the comprehensive management of ESI through set procedures, processes, and policies. This may include a series of policies, procedures, and controls. Information governance is such a crucial component of successful eDiscovery that there is now a separate model dedicated entirely to it called the Information Governance Reference Model (IGRM).
This is the process of locating the potential sources of Electronically Stored Information (ESI) in the case or matter i.e. where is the ESI stored? Knowing what information will end up being important isn’t always easy at the start of the eDiscovery process. Identification includes identifying key pieces of electronic information that are likely to be important in bringing or defending a case or matter.
It will involve asking questions such as, who are the relevant people involved in the matter (custodians), what electronic devices do they have e.g. laptops, mobile phones etc., where is the information stored and what is the back-up policy of the company? This is a very important phase and if not completed properly, could cause issues later in the process.
Once the potential electronic information has been identified, the next step is preserving it. This involves sending a notification to everyone within the organisation who is affected by the case or matter, informing them that they are obliged to preserve documents, both physical and electronic.
This is in order to preserve any evidence which may potentially assist in the dispute. By doing this, the company is effectively freezing the information and preventing employees and IT departments from deleting it.
The next stage is Collection which is harvesting the electronically stored information (ESI) from the client for further use in the eDiscovery process e.g. processing, legal review and analysis. This is not as straightforward as it may seem and often involves engaging a specialist eDiscovery expert to forensically collect the data and metadata using defensible techniques.
In some cases the client may have the capability in-house to do this themselves. However, if there are complicated issues such as problems with the way the data is stored, problem devices or issues with certain types of ESI, then expert assistance may be required.
The next stage of the EDRM is Processing. EDiscovery experts are heavily involved at this stage with the legal team. They may conduct various processes to ‘clean up’ the data e.g. by eliminating system files, maintaining the metadata, as well as processes to reduce the size of the overall document review set. For example, deduplication, end point email threading, keyword searching, applying date ranges and/ or early case assessment.
Utilising the Artificial Intelligence (AI) functionality of the legal technology software can be a very important stage for the legal team by analysing trends in the data and may often inform how the review stage is conducted.
Once the ESI has been harvested and processed, it must be reviewed by the legal review team to evaluate how it relates to the case or matter. Document reviews are usually conducted by trained solicitors and paralegals. They determine what documents are relevant to the issues in the case or matter and whether they are disclosable to the other party or are privileged and need to be withheld. Redactions may also be required for part-privileged documents.
The Review stage is one of the most important stages of the EDRM and can be the most costly if not undertaken properly. The legal review team will utilise the AI functionality of the review tool and trusted workflows to ensure that the review is conducted in the most efficient, cost effective way with a high quality output. Quality Control is conducted during and after first level review, normally by senior solicitors or project managers.
Reviews can be conducted by linear review or by Technology Assisted Review (TAR). In a linear review, all of the documents in the document set are reviewed individually. In certain cases, such as in very large scale reviews, conducting a document review using TAR can have huge advantages. In a TAR review, reviewers are provided with suggested relevant documents by the review tool. The software ‘learns’ from the human decisions that the reviewers make and suggests other potentially relevant documents for review. This often results in a dramatic reduction in the number of documents for review, saving time and costs.
It is somewhat self-explanatory but the Analysis stage involves evaluating the document set. Analysis is its own stage of the process. However, an element of analysis is carried out at all previous stages of the EDRM especially during the processing and review stages. It can involve looking at the content and context, key patterns, topics, people, and discussion.
The various review tools have different AI functionality but essentially, it is used to help lawyers extract intelligence from large data sets. Some review tools, such as Relativity, can provide very useful visualisations, metrics and reports. This is a key part of the process for the legal teams and often informs their overall strategy in the case or matter.
This is the process of delivering the final output to another party in the matter or case. The eDiscovery experts and the legal teams work closely together to deliver the disclosable document set (relevant and non-privileged documents) to the other party which is then used in the formal legal proceedings.
The legal team will ensure that they adhere to any agreed protocol and any applicable procedural rules or court orders. Production may take place electronically or if agreed, by printed bundles. Numerous quality checks are conducted at this penultimate stage prior to delivery to the other party.
Once the document set has been produced, it is then presented during the legal proceedings e.g. during a litigation trial. In more recent times, digital presentation has become increasingly common and there are various forms of trial software available.