Earlier this year, Everlaw CEO AJ Shankar and Jon Kerry-Tyerman, VP of Business Development and longtime Adjunct Professor of Law at the University of San Francisco, co-authored an ediscovery chapter in an upcoming legal informatics textbook. The book is due next year and over the next twelve weeks, we’ll share with you the ediscovery content in the book.
In this series, we’ll cover the ediscovery basics, including the history of the Electronic Discovery Reference Model (or “EDRM”), core technical ediscovery concepts, the technologies powering ediscovery (encryption, machine learning, transcoding, etc.), as well as the future of ediscovery.
Let’s start today with the models and frameworks that brought us the EDRM.
Models and Frameworks
In nearly any field, there are noble attempts to capture and distill the complexity of the work involved into models, frameworks, templates, guides, or other generalizable representations. While these efforts are never without flaws—as, more or less by definition, something short of the whole truth— they are nonetheless useful approximations. When used correctly, they create common ground for discussion, analysis, and, ultimately, improvement of the underlying processes.
In ediscovery, we are fortunate to have the Electronic Discovery Reference Model, commonly referred to as the EDRM. It was first promulgated by a group of ediscovery and legal professionals in 2006 and has been revised several times since then; the latest version, v3.0, was released in 2014. The parent organization (also called EDRM) has also undergone a number of transformations in that time, most recently having been acquired by Duke University School of Law and integrated into the school’s Center for Judicial Studies, and has developed a number of complementary models, frameworks, and standards for everything from metrics to ethical decision-making.
Over the years, the EDRM has become entrenched as the standard for understanding the different components of the ediscovery process. It suffers from the same shortcomings endemic to any model—indeed, the drafters took pains to emphasize the conceptual nature of the EDRM—but has nonetheless proven relevant enough to real-world practice to have stood the test of time.
It begins with Information Governance, the management of original information within an organization, and ends with Presentation, the use of information as evidence in litigation. It is intended to be descriptive, rather than prescriptive, and is therefore not necessarily to be followed literally in every case; there may be some situations where a different order is warranted, or where some steps can be skipped altogether. Furthermore, it is designed to reflect the iterative nature of the underlying work, with many steps repeated as the approach to the particular matter is refined as it evolves.
In general, the technical toolset used for the tasks on the left-hand side of the EDRM (i.e., Information Governance through Preservation/Collection) has remained separate from the toolset used for the tasks on the right-hand side of the EDRM (i.e., Processing/Review/Analysis through Presentation), so it has become very common for ediscovery practitioners to refer to each side as a distinct unit (e.g., “The left-hand side of the EDRM”). We will also use this shorthand in discussing the components of the EDRM.
Check back next week when we dive into the “Left-Hand Side” of the EDRM, including information governance, identification, preservation, and collection.