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Identification of Potentially Relevant ESI: Considerations for Success

The Electronic Discovery Reference Model (or EDRM) has been guiding the discussion of the eDiscovery process since the discovery updates to the Federal Rules in 2006. Designed as a “conceptual view of the eDiscovery process, not a literal, linear, or waterfall model,” the EDRM often serves as the starting point for discussions with clients about their eDiscovery obligations in litigation, investigation, and subpoena response matters.

Electronic Discovery Reference Model

The “left side” of the EDRM focuses on the identification, preservation, and collection of potentially relevant electronically stored information (or ESI). The tall blue pillar in the middle covers the processing, review, and analysis of ESI. It is at this stage that most of the eDiscovery spend occurs, and hence where the greatest opportunities for efficiencies lie. Production of documents plus the presentation and use of documents in further discovery and trial occupies the “right side.”

In the coming weeks, I’ll be sharing some considerations for making the major steps in the EDRM process successful for both attorneys and their clients. This week begins with the foundation of the process – identification of ESI and other materials that may be relevant to a matter.

  • Understand the elements of the claims and defenses raised by the demand letter, subpoena, complaint, written discovery request, or other “triggering document” that you may receive. It’s the elements that fundamentally determine what evidence – including ESI – may be relevant and hence deserving of identification.
  • Think about the people (the human “content creators”) and the systems (the electronic “content creators”) that may be creating potentially relevant ESI. It’s hard to beat in-person interviews of both the human content creators and the IT professionals who oversee relevant electronic systems. Org charts and IT data maps are valuable, too.
  • Identify the software, hardware, and physical locations where potentially relevant ESI might reside. Again, nothing beats interviews in this regard, and nothing beats a solid checklist to help guide such interviews. There are many such checklists available – one of the best is The Sedona Conference® Jumpstart Outline, available here.
  • The popularity of cloud- and SaaS-based applications for the creation of potentially relevant ESI grows each year. Don’t forget to inquire about such “outside” resources. And get in front of them quickly – in-house IT professionals may not have the same degree of control over such systems as they do those that are behind a company’s firewall.
  • Finally, document everything. The EDRM has a template available here, together with an excellent collection of its own considerations for the identification phase.

The eDiscovery consulting practice at Level 2 Legal welcomes the opportunity to advise attorneys and their clients concerning all aspects of litigation readiness and the EDRM, including ESI and other document identification.