Preparing for court is a bit like planning a meal. Before you can cook, you need to track down the right ingredients.
In a similar fashion, legal teams need to identify and procure information before bringing a case to court. The name for this process is eDiscovery. And in today’s digital age, it’s one of the most important parts of the pretrial process.
Keep reading to learn more about the Electronic Discovery Reference Model (EDRM) and how it works. We’ll specifically explore the identification stage, which is a key part of the EDRM process.
What Is eDiscovery?
Before a trial begins, the two opposing sides meet and confer to outline terms for sharing information. Once that’s done, the legal discovery and eDiscovery process starts. Whereas “discovery” applies to physical evidence—like paper documents and forms—eDiscovery refers to digital evidence.
During legal eDiscovery, both sides request and exchange electronically stored information (ESI). This includes items like emails, messages, photos, charts, graphs, and data.
To be sure and manage ESI correctly, it’s a good idea to stick to the EDRM. This framework offers guidance and support during the eDiscovery process, giving legal teams a flexible and reliable model for success.
What Is the EDRM?
The digital era brought with it many new challenges for the legal industry. All of a sudden, the industry had an abundance of digital information to handle—and no real framework for producing it in court. Legal teams needed a way to simplify the way they collect, store, process, and manage ESI.
Facing a difficult situation, a group of independent legal experts created the EDRM in 2006. The EDRM provides a working model for efficient eDiscovery management.
The EDRM is a bit different today, having gone through numerous revisions over the years. However, it remains the go-to model for legal teams for eDiscovery planning and execution.
Keep in mind that you don’t have to follow the EDRM down to every last detail. For most teams, it’s a starting point they adjust to meet their own requirements.
The Nine Stages of EDRM
The EDRM isn’t a linear strategy. Rather, it’s a conceptual model. You can move items around, skip them, or add steps as you need to. This is just a template.
Here’s a breakdown of how it works.
1. Information Governance
Information governance involves setting a plan to reduce risk and minimize expenses when managing data. All companies should have information governance systems in place.
2. Identification
Identification is all about locating ESI sources and determining the scope of the information. We’ll dive deeper into this step later on in this post.
3. Preservation
Preservation protects ESI from manipulation and destruction.
4. Collection
Collection relates to gathering ESI for use in court.
5. Processing
Processing involves culling or reducing ESI and converting it for affordable and efficient analysis.
6. Review
Review entails evaluating ESI for relevance. The purpose is to understand the content and break it down into different categories.
7. Analysis
Analysis has to do with determining context and outlining patterns and topics.
8. Production
Production is the stage where legal teams deliver ESI to key stakeholders.
9. Presentation
Presentation occurs when displaying ESI before audiences during a deposition, trial, or hearing.
What Is Identification?
Identification is the process of uncovering all the various sources of ESI. This includes people, business units, IT systems, people, and databases.
According to the EDRM, identification should be comprehensive and thorough. This requires conducting interviews and determining where relevant data exists and how it got there. During identification, legal teams also need to determine inaccessible data and retention policies.
Identification typically takes place early in the EDRM cycle, after a meet-and-confer session. This step provides a foundation for the rest of the EDRM process because if you don’t identify all the right ESI locations, you could miss important information. In turn, this could lead to negative consequences during eDiscovery and especially in court.
Identification: A Step-by-Step Breakdown
The EDRM recommends taking the following steps during the identification process to ensure a smooth delivery.
1. Develop an Identification Strategy and Plan
Under Rule 26 of the Federal Rules of Civil Procedure (FRCP), a party must provide information about the evidence it intends to present during the trial. In fact, they must file disclosures at least 30 days before trial.
Since there isn’t a lot of time to work with, legal teams need to move quickly. Each member needs to efficiently identify any relevant ESI for use in court. This requires mapping data and preparing an identification plan.
2. Establish the Identification Team
Step two involves creating an identification team. The purpose of this team is to manage the identification process and provide consultation.
The team should consist of corporate legal counsel, outside counsel, IT personnel, and records management personnel. It should also include data custodians, HR personnel, business leaders, and service providers or discovery consultants.
3. Identify Relevant ESI Sources
The next step is to identify relevant ESI sources for use in court. This process involves identifying key witnesses and custodians, determining key time frames for producing data, forming keyword lists, and identifying relevant data and document types.
It’s also necessary to identify email sources. Further, you need to determine the relevance of backup media and retired hardware that’s no longer in commission. Don’t forget disaster recovery systems, either.
The EDRM recommends giving consideration to any prior systems in place to handle information during the time period in question.
Additional data sources include cloud computing, third-party systems, and digital voicemail stores, to name just a few examples.
4. Certify Relevant ESI Sources
After you locate all ESI sources, you have to certify them.
The EDRM recommends running all efforts and results for relevant ESI sources by the eDiscovery team lead or counsel. It’s also important to mention all types of ESI sources in the search.
5. Status and Progress Reporting
During the status and progress reporting stage, IT members provide reports to stakeholders and managers. The team then reviews the information.
The purpose of this process is to identify errors, duplication issues, and other challenges that may impede progress.
6. Defensible Audit Trail Documentation
It’s important to document the entire identification process to demonstrate thoroughness and accuracy.
The case file should contain the identification strategy and plan, interview questions, responses and memoranda, surveys, interview logs, and information that demonstrates validity.
7. Validation
The very last stage of the process involves conducting a thorough review of everything. At this point, you need to make sure a litigation hold is in place. It’s also necessary to account for email sources and document all communications and decisions.
How Venio Helps With Identification
As you can see, identification is very important. It’s also highly complex. Managing identification can be very difficult without a centralized document management system in place.
For this reason, it’s critical to have a platform like VenioOne to orchestrate eDiscovery end to end. With Venio, your team can have a much easier time collecting, compiling, reviewing, culling, and preparing information for use in court. Venio offers strong data security, enabling you to share information from within the platform. Additionally, Venio processes information at a rate of up to 10 TB per day. The platform also supports simultaneous projects, giving you everything you need to get the best legal outcomes.
At the end of the day, Venio can turn eDiscovery into your team’s biggest strength. You’ll move through eDiscovery faster while lowering costs and improving security and communication. This in turn reduces risk and improves your odds of winning in court.
To experience Venio in action, request a demo today.
This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.
