Randall Consulting will be writing a series of blogs to further emphasize what was stated in the last entry. The majority of Law Firms and service providers cannot afford training right now because of the economy. With that being said I have decided to write blog entries on topics to help bridge the gap until your company can send you to get that much needed electronic discovery training.
Randall Consulting teaches its EDD classes in lifespan order. With that being said these blog topics will also follow some sort of order. The Electronic Discovery Reference Model has gained a lot of momentum in the past two years. It is now the standard for understanding the EDD lifecycle. It is also a great way to begin. Anthony Martinez from Litigation Logic posted a great topic on the E-discovery 101 LinkedIn group as well as his blog. It was in relation to can most internal litigation support staff walk attorneys thru all the discovery phases of the EDRRM model? The simple answer is not unless they understand the lifecycle and not unless they have the proper training.
The audience for electronic discovery is rapidly expanding with each year that passes as available technology is understood and applied. Capturing, processing, reviewing and analyzing electronic data has appeal to many anticipated audiences, including:
- Law firms - litigators
- Law firms - corporate lawyers
- Law firms - litigation support staff
- Corporations - management
- Corporations - office of general counsel
- Corporations - compliance officers
- Service providers
- Software/product providers
- Consulting firms
- Federal courts
- State courts
- Regulators
- Financial institutions
EDRM
Step 1- Records Management-
The proper control of unstructured information through a RM system and a retention schedule is an important pre-discovery step. All document control systems will be of assistance in better organizing and controlling unstructured information. Keeping documents in an RM system also solves chain-of-custody and preservation issues. This may be the biggest challenge facing corporations. A document retention schedule needs to be put in place.
Step 2- Identification
This includes naming potential custodians of data, timeframes, keyword lists and file types. Identification has a number of components. Be prepared to present documentation of system architectures.
This is one of IT's major contributions to identification. In terms of documenting corporate IT infrastructure and network topologies, identifying all data stores, systems and storage devices, and types of data, plus its age. Assess the relevancy of data and systems that are used for backup and recovery. Your backup and recovery policies may become part of the evidence, so they need to be recorded and auditable.
Data can also reside on laptops, flash drives, telephone switches, backup tapes, personal digital assistants, and off-site or third-party systems. There are technical solutions that can help a company to identify all the nodes on a network, including the hard drives of desktop or laptop.
Step 3- Preservation and then Collection-
This saves data in case it needs to be produced. Crucial features are litigation hold and litigation hold tracking. Preservation of potentially relevant information is complex.
Preservation of evidence depends on records-retention policies, documentation of the IT architecture, well-documented processes for putting litigation holds in place, and identification of all potential sources of data.
Some RM systems have litigation hold as a feature, but the vast majority of the data is not in a managed system. Many manage litigation holds by simply suspending normal deletion and media rotation programs, finding themselves in the position of not deleting anything, which is unsustainable.
Collection
Information must be collected from the repositories where it resides, but it must also retain its form and metadata integrity.
Review should be done if possible in native format, so the metadata can be seen and so as to preserve the chain of custody. Some vendors will consult metadata — such as who has accessed a document, authored it or edited it — as a factor in establishing relevancy to a query, but cannot necessarily reproduce that data such that it will stand up in a courtroom. Searches themselves are becoming important in the chain of custody, so you should make an accurate record of them. During collection, audit logs need to include searches by custodian, date, keyword, operator and project. If this is not possible via the software, then record this information and be prepared to swear to its accuracy. It is inherent that you understand at least the basics of computer forensics.
The EDRM model now starts to shift from Volume to Relevancy. Processing and then Review followed by analysis fall under the Step 4 tree.
Step 4- Processing-
This prepares the documents for review and can be basic or advanced. De-duplication, culling and prioritization are important, along with indexing, categorization, filtering and other content-driven analysis activities. Consult with your lawyers to determine the level of analysis that they want. If they give you some keyword searches ask them how they came up with it. Make sure you use a service provider that fully understands electronic discovery.
Review-
This is strategic attorney review. Newer tools — such as those that allow documents to be grouped or clustered, visualization tools, and tools designed to show "missing" information are all currently available for use. These can help more creative attorneys and other legal professionals gain a competitive edge. It is important to note that more
Advanced techniques are not yet fully accepted by courts because their functionality is not widely understood. IT-savvy law firms and some regulators have begun using them, as have highly litigious end-user clients. Remember that any search software that is used must be explicable to opposing counsel, the regulator or the judge.
Step 5- Production
This is the form in which the documents must be produced for review by outside parties. Most of the review platform vendors can produce electronic content in the format in which lawyers wish to look at it, including native format.
Review, analysis and production have two delivery models — hosted or enterprise. Because case data frequently needs to be viewed and worked on by multiple firms, and also because of volume and processing considerations, the hosted model makes sense in many cases.
Step 6- Presentation-
If a case goes to trial then this would be the last phase. Consider early and often how you can most effectively present the electronically stored information at depositions, hearings and trial.
This is just a basic overview of understanding what each step in the EDRM model consists of.
For additional information on the EDRM model as well as the current projects they are working on please visit: http://www.edrm.net/
The next blog by Randall Consulting will go more in-depth on Records Management.
John Randall
President
Randall Consulting
Http://www.randallconsulting.net
