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The EDRM - Understanding Foundational Electronic Discovery Principles

David J. Kearney

ILTA Volunteer City RepresentativeJune 20, 2013

EDRM - Overview

� http://www.edrm.net/

� Stands for The Electronic Discovery Reference Model

� First launched in 2005 and released publically in 2006

� Developed to provide a standardized approach to e-Discovery related activities

� Helps visually depict the movement of electronic discovery components from one phase to the next.

� Contains 9 phases/stages

EDRM - Overview� Information Management

� Identification

� Preservation

� Collection

� Processing

� Review

� Analysis

� Production

� Presentation

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EDRM - Overview

�Stages standardize workflow

�Stages are not fixed sequentially

�Not meant as a literal, linear or waterfall model

�The EDRM is meant to be iterative in nature

EDRM - Overview

� Recent Article – January 22, 2013

[Elleanor] Chin says one way to create greater

cost predictability is for lawyers to recognize

the elements of e-discovery projects (as defined by the EDRM model) that remain

largely consistent from matter to matter and

“reuse existing technology, workflows, and infrastructure and to conserve the cost of legal

decision making, for executing the big picture

strategy.”

Modernizing E-Discovery Planning and Budgeting

http://www.exterro.com/e-discovery-beat/2013/01/22/modernizing-e-discovery-planning-and-budgeting/

By: Andrew Bartholomew6/20/2013

EDRM - Overview

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Information Management� Information Management

� Many issues can be better managed if this stage is taken seriously and implemented with consistent & sound practices.

� This is THE STARTING POINT for the entire process. Sound and comprehensive information management strategies aid organizations in the identification, preservation, and collection steps of the process and can lower the number of documents that need to be preserved, collected, reviewed and produced. This is where more organizations can GET IT RIGHT. Furthermore, risks and costs are reduced.

Information Management

� Information Management

�Has morphed into Information Governance

�Information governance, records and information management, and data disposition policies are ways to help lower costs and mitigate risks for organizations.

Information Management

“Part of the reason eDiscovery is so expensive is because companies have so much data that serves no business need. … Companies are going to realize that it’s important to get their information governance under control to get rid of the data that has no business need … in ways that will improve the company's bottom line…” — U.S. Magistrate Judge Andrew J. Peck, CGOC

Faculty Member, in a video interview courtesy of JD Supra Law News, February 4, 2013.

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Identification

�Locating potential sources of ESI & determining its

scope, breadth & depth.

Identification� Identify individuals responsible for the resource.

� Interview end-users who input data, and the personnel who perform maintenance on the resource.

� Custodian ESI may include:E-mailPersonal storage on hardware devices (handheld devices, DVDs, thumb drives)Allocated network storagePrivate data storage (home computer, personal e-mail)Data associated with social networking sites used by the custodian

� Non-custodian ESI sources are those not held by a particular person. Examples of non-custodian sources:Databases

WikisShared network storage locations

Preservation

� Ensuring that ESI is protected against inappropriate

alteration or destruction.

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Preservation

� Preservation is the process of retaining documents, including electronic documents, for legal purposes and should include the suspension of normal document retention/destruction practices and policy.

� That means that any data must be retained as it is, status quo, either by copying the data to another location or stopping all automated or manual changes or destruction of the material.

� It must also be determined if there is a possibility of the data being modified, deleted, and if so, needs to be preserved to another location.

CollectionGathering ESI for further use in the e-discovery process (processing, review, etc.).

� Once documents/files have been preserved (sometime one and the same), collection can begin

� Transfer/acquisition of data for review

� Includes; Servers, PCs, Macs, Linux, Windows, iOS, Android, handheld devices, flash/thumb drives , tablets, MP3 players, phone systems, backup tapes, CD/DVD, databases (financial, CRM, ERP), structured/unstructured

data, Cloud/Social Networking Sites� Proper planning and careful implementation can reduce time & money

spent

� Ensures integrity of evidence� Proper collection can guard against future disputes (discovery about

discovery – causes unneeded rancor between parties)

� Process must be defensible, proportionate, efficient, auditable, and targeted.

� May impact and expand the scope of the discovery process

� Collection costs can be significant

Collection

A reasonable collection strategy must address

what ESI should be collected, when, and how

�What: The total corpus of potentially collectible

ESI will usually have been defined during the process of formulating the internal preservation

directive/litigation hold. Usually consists of four

main categories of data locations:

1. Individual employee files

2. Department/group files

3. Enterprise databases

4. Backup Media

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Collection

�When: Not all data identified for preservation

needs to be collected right away. Some data

may never need to be collected. Collecting all data that has been preserved may unnecessarily

inflate costs and overwhelm the case team with

irrelevant data

�How: Once the timing of collection from a data location has been decided, the team must

assess what level of forensic defensibility should

be employed for the collection

Collection

Normal collection processes generally involve straight forward copying, that maintains the integrity of the metadata, of the ESI as it exists on the system

A forensic protocol must ensure that the process is carried out in a way that will produce reliable information consistently, so the individual conducting the collection can testify

The protocol must also provide for a means of verifying the integrity of the work that has been done by maintaining an untouched mirror copy of the inspected materials

Collection

Maintaining Integrity of Metadata…

�The single most important thing that can be done

is to use a software or hardware write blocker.

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Collection

Metadata

�System Metadata - Data about the architecture

of the system

�File Metadata - Data about the data in a specific file that is recorded internal to that file

Collection

Acquisition is actually the proper term for

collecting electronic data. In digital forensics,

examiners refer to the copying of data as acquiring to avoid any confusion that might be

caused by using “copying”, since copying

doesn’t imply that the copy was made in a forensically sound manner.

Collection

Tools Used During Collection:

�Write Blocker

�LEO

�Suites

�Task Specific

�Software

�Hardware

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Collection� Forensically Defensible Collection – a forensically sound

collection will preserve all potentially relevant metadata that may be of use to the trial team in its claims. This collection type utilizes a “write-blocker” to prevent alteration of source media when a device is attached to retrieve the data.

� Maintains rigorous chain-of-custody controls that document all collection steps, from initial access to the point of storage or processing.

� Ensures that nothing about the data is altered or degraded

� A collection by a third-party vendor will often be the best method.

� Typical of a targeted collection

Collection

� Forensic Collection – a forensic copy of a hard

drive will include every byte of data on that

drive, including data in unallocated space and slack space. Forensic inspection of a party’s

computer system is rarely necessary.

� Because forensic collections are much more

invasive and inclusive, there is a greater risk of disclosure of information that is either irrelevant to

the matter or protected by privilege claims. The

forensic protocol must therefore take steps to mitigate risks and protect the producing party.

Collection� The decision regarding the degree of forensic

defensibility will be required for ESI collection. This decision must be made on an individual basis depending on the cost, accessibility, and needs of the case.

� The software & process used must, at least, be capable of write protecting the files during the collection process and maintaining the integrity of both the system and file metadata associated with each file/document

�One constant is the need to have detailed and complete documentation of the critical decisions and actions made during the collection process

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Collection

�Whether or not a file server should be forensically

collected depends on the nature of the

investigation. More often than not, collecting the active data and relevant network shares is

appropriate

� If extracting an event, log, intrusion, or other time

critical event, forensic imaging of the entire server may be necessary

Collection

� Collection can be accomplished by:

� The Client – Corporate/IT Personnel

� Custodians – Potential dangers when

custodians/clients try to collect their own data –especially when seeking consistency and unbiased

process, e.g. 10, 25, 50 custodians and a delete key.

� Outside Law Firm

� Vendor

� Not Reasonably Accessible

� Balancing Test:

� Cost of converting data into more accessible

format

� Cost to review the data for responsiveness, privilege, or other concerns

� Business disruption and other internal costs

� Other issues to address:

� Relevance of data residing on the source

� Overall litigation value of the data at issue

� Other means to get information

Collection

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� Sources of ESI

� Shared network resources are resources, files, or

other data shared throughout the network being examined, such as

� E-Mail servers

� Document Servers

� Files Servers

� Other resources shared across the network

Collection

� Other sources

� Cloud/web-based storage and E-Mail (e.g. Gmail,

Yahoo, Box, Dropbox, Facebook…

� Absent a subpoena or court order, it is nearly impossible to collect the data held by an ISP

� Flash, temporary, and ephemeral data storage

(e.g., thumb/external drives leave data droppings)

� Social Networking applications

� Databases (reports v. exporting the data)

Collection

� Structured v. Unstructured data

� Differences & Specifics

� Structured Data - Information with a high degree of organization

� Relies on users

� Legal Hold at application level

� Unstructured Data

� No identifiable structure

� Potential large number of users

� May be largely duplicative

� How it is applied to e-Discovery

� Structured Data – e-Discovery expenses are IT & User costs for identification, Collection, and Legal Hold

� Unstructured Data – Costs are for Processing, Analysis & Review

Collection

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� Cost Factors & Considerations

� Travel to different locations to have personnel on-site to perform collection

� Whether the collection is performed by use of an automated script that can run remotely or without manual operation

� Custodian interviews at the time of the collection may raise initial costs, but are more efficient in the long run since such interview will likely to be ultimately needed

� Forensic collection require the use of different, more complicated techniques, and the collected data will need extra handling during processing and review

Collection

� Cost Factors & Considerations� Impacted by the number of megabytes, gigabytes,

terabytes, Petabytes, Exabytes, etc. needed to be collected

� The human review, which can be the most time consuming and expensive part of the entire e-discovery process…even if using Technology Assisted Review…volume of review becomes larger with the amount of data collected, just by basic nature of more…

� Controlling, Monitoring, and being able to justify a sound stepped approach to limit the data being collected (custodians, data range, etc.)

Collection

CollectionQuality Control

� Validating that all ESI has been collected. In general, over-inclusive collections, coupled with repeatable, documented, and defensible methods to cull and search ESI will be most effective at validating the

collection of ESI� Courts are increasingly sensitive to the costs of electronic discovery

and the concept of proportionality, which should be taken into

account when assessing the scope of the collection� In some cases, the use of software tools will aid in validating the

collection of ESI. Failure to use commonly accepted methods and

technologies may expose the client to additional risk� In addition, each piece of digital data can generate a unique value,

known as a HASH VALUE. Commonly used hash formats are “MD5”

and “SHA-1”. If a dispute arises about the integrity of a piece of information, the hash value of the original data can be compared with the original's hash value

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Collection

� Other commonly used tools and devices for

collection

� Faraday Bags

� Inventory & Tracking System

� Check-in & Check-out Procedures

� Cameras and Video Recording

CollectionTips

� When wrongdoing is suspected, don’t “take a quick peak” at a computer without forensic collection

� Don’t delay to preserve a device� Don’t assume that all devices are the same a PCs

� Always document the process� Don’t assume that the device is not encrypted

� Do not save time/money by using traditional file copy methods

� Don’t process everything at one time that was collected� Test and sample search terms and expressions against the

dataset� Examine foreign language types – make sure you have a solid

understanding od the data

Processing

Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review & analysis.

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Native Format

� Documents in native format:

� Have not been converted in any way from its original form

� Will appear and behave exactly as they did at the point of creation

� If produced in native form, no costs incurred to convert into another format

� Contains full metadata, which often includes privileged or sensitive information (subject, author, date, tracking changes, etc.)

Imaged Format

� Documents in imaged format:

� Equivalent to printing a document and creating a

static page image

� Can be time-consuming, expensive to process

� Can lead to loss of information useful to requesting party, i.e. the loss of metadata

Metadata� Metadata, which is a part of all types of ESI, exists

in fields that can be used to populate a load file database created by the requesting party.

� Examples of metadata fields are:

� Names (author, sender, recipient, blind recipients)

� Dates (create date, sent, received, modified)

� Subject (primarily for e-mail)

� Document type

� “Text” (searchable field containing the text or body of the document itself) –

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Processing

Assessment

� Assessment is a critical first step in the workflow as it allows the processing team to ensure that the processing phase is aligned with the overall e-discovery strategy, identify any processing optimizations that may result in substantive cost savings and minimize the risks associated with processing. A critical aspect of this step is to ensure that the processing methodology will yield the expected results in terms of the effort, time and costs, as well as expected output data streams.

Processing

Preparation

� During assessment a determination is made as to

which classes of data need to be moved forward

through processing. At that point there may be a number of activities required to enable handling

and reduction of that data.

Processing

Selection

� One of the primary reasons for “processing” data

in an e-discovery project is so that a reasonable

selection can be made of data that should be moved forward into an attorney review stage

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Processing

Output

� The data that has been selected to move

forward to review is transformed into any number

of formats depending on requirements of the downstream review platforms, or in certain

circumstances simply passed on to a review

platform in its existing format; or it may be exported in a native format.

Processing

Overall Analysis / Validation

� Throughout the four phases of processing there

are opportunities to analyze the data or results of

certain sub-processes to ensure that overall results are what was intended, or that decisions

as to the handling of the data are valid and

appropriate.

Processing

Overall Quality Control

� Validation is the testing of results to ensure that

appropriate high level processing and selection

decisions have been made, and ensuring that ultimate results match the intent of the discovery

team. Quality Control (“QC”) involves testing to

see that specific technical processes were performed as expected, regardless of what the

results show.

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Processing

Overall Reporting

� To meet the needs of project management;

status reporting; exception reporting; chain of

custody and defensibility it is important that processing systems track the work performed on

all items submitted to processing.

Processing

� Collected ESI must first be entered into an appropriate software program or tool with processing ability

� Regardless of who processes the data, it is imperative that the resulting data sets are reviewed and that the process is validated

� The processing software must provide logs of what was accomplished and what failed during processing.

Processing

Tools Used for Processing

� PC/Server-Based

� Cloud-Based

� Vendor-Based

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Processing

� Methods for limiting volume include:

� Culling to exclude particular document types

� De-duplication

� Elimination of system files

� Application of search terms and date limitations

Processing

� Culling

� Processing methods must account for and remove

irrelevant data

� Before data is indexed for processing, it can be culled by the following criteria:

� Remove all files of file types deemed to have not

evidentiary value

� Remove documents with certain file paths

� Eliminate files that fall below a size threshold

Processing

� De-duplication:

� The process of removing exact copies of the same

message or file from a data set, thus reducing the number of files that need to be reviewed.

� Within-custodian

� Across-custodian

� “Near duplicates” – slight changes to a document;

different hash values

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Processing

Culling Methods

� Deduplication

� DeNISTing

� Paths

� Size

� No evidentiary value

Processing

� Deduplication

� DeNISTing

Processing

• Budget based on assumptions from actual data

– Client should have a good idea of custodian data

– Know the data being worked with, e.g. E-mail will

have a much different volume vs. databases/spreadsheets

– Having more time permits greater cost control, &

consistency

– Open communications and discussions with opposition to agree on scope and methods

– Collecting all data that has been preserved may inflate costs unnecessarily

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Analysis

Evaluating ESI for content & context, including key

patterns, topics, people & discussion.

Analysis

Analysis

Fact Finding

Includes:

• Information Management

• Litigation Readiness

• Data Assessment

• Collection

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Analysis

Search Enhancement

Includes:

• Inputs

• Roles

• Tools & Technology

• Outputs and Desired Outcomes

• Metrics

Analysis

Review Enhancement

Includes:

• Inputs

• Roles

• Tools & Technology

• Metrics

• Outputs and Desired Outcomes

Analysis

Process Analysis

Impact Analysis

Includes:

• Information Management Design

• Search Enhancement

• Review Enhancement

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Analysis

Process Analysis

Validation/Quality Assurance

Includes:

• Testing

• Documentation

Review

� Evaluating ESI for relevance & privilege.

� Privilege issues

� Review methods

� Budgeting and costs

� Evaluating ESI for content & context, including

key patterns, topics, people & discussion.

Review: Privilege Issues

� We review to:

� Distinguish relevant from irrelevant

� Protect privileged material

� Attorney-client communications

� Attorney work product

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Review: Privilege Issues

� Waiver of privilege

� Clawback agreements

� Agreement that inadvertent production of privilege material will not constitute a waiver

� Quick peek agreements

� No effort to weed out privileged material up front

� Evidence Rule 502

� Generally establishes that inadvertent production will not result in waiver

� Encourages use of protective orders including clawback agreements

Review: Review Methods� Coding

� Responsive or non-responsive

� Privileged

� Confidentiality

� “Key” documents

� Basic linear review

� Concept searching

� Clustering (uses linguistic, latent semantic technologies)

� E.g., when searching the term “diamond,” clustering will allow you to distinguish between “baseball” diamond and diamond “ring.”

� Predictive coding

Technology Assisted Review

�…or Predictive Coding

• …or Computer Assisted Review

�…or Intelligent Review

• …or ???? Review

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EDRM - CARRM

� EDRM’s Computer Assisted Review Reference Model

6/20/2013OLP - eDiscovery Certification Course

Review & Analysis: Budgeting and Costs

� Discovery costs may well be the largest budget

item, other than trial

� Since few cases ever get to trial, discovery is

often the single most expensive part of any litigation matter

Review: Budgeting and Costs

� Understand the cost drivers

� Number of custodians

� Volume of ESI each custodian will handle

� Review of ESI

� Create a budget of the estimated costs as early as possible

� All assumptions should be stated explicitly in the budget so that variances can be noted and the client can adjust expectations accordingly

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Review: Budgeting and Costs

� The complexity of the case will have a direct impact on the cost of e-discovery

� Complexity of the coding schema (number of tags the reviewers will be applying)

� Sophistication of the privilege issues presented by the facts of the case

� Number of passes of review that are anticipated

� The most efficient way to organize a review is with numerous decisions during a single pass review rather than through separate review phases of the same material

Production

� Delivering ESI to others in appropriate forms &

using appropriate delivery mechanisms.

Production

� Parties should agree on a form of production at the outset of discovery, ideally at the earliest stage of discovery.

� Under Rule 34, the requesting party may specify a format to which the producing party may object and offer an alternative format.

� Rule 34 of the FRCP states that the format must be either the form in which it is ordinarily maintained in the usual course of business or a reasonably usable form.

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Production

� Native format

� The form in which the document is maintained in the

system where it was created

� Reasonably useable formats

� Any imaged format of the ESI such as TIFF or PDF

� Should include metadata

Production: Native Format

� Documents in native format:

� Have not been converted in any way from its original form

� Will appear and behave exactly as they did at the point of creation

� If produced in native form, incur no cost to convert into another format

� Contain full metadata, which often includes privileged or sensitive information (subject, author, date, tracking changes, etc.)

Production: Imaged Format

� Documents in imaged format:

� Equivalent to printing a document and creating a

static page image

� Can be time-consuming, expensive to process

� Can lead to loss of information useful to requesting party, i.e. the loss of metadata

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Production: Metadata� Metadata, which is a part of all types of ESI, exists

in fields that can be used to populate a load file database created by the requesting party.

� Examples of metadata fields are:

� Names (author, sender, recipient, blind recipients)

� Dates (create date, sent, received, modified)

� Subject (primarily for e-mail)

� Document type

� “Text” (searchable field containing the text or body of the document itself) –

� TIP: “Text” field needs to be removed when redacting

Documenting Production

� ESI productions should include correspondence,

production shipments, confirmation and shipping

receipts, and a tracking log showing:

� What material was produced

� On which type of storage media (CD, DVD, hard drive)

� How it was transmitted

Documenting Production

� The production media should be subject to quality-control checks to:

� Assure completeness

� Show lack of corruption

� Conform with production format (as agreed upon in the parties’ 26(f) discovery plan)

� Documentation of these processes should be kept to show timely and accurate compliance with production requests.

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Presentation

� Displaying ESI before audiences (at depositions,

hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing

facts or positions, or persuade an audience.

Overall Tips

� Consult FRCP and local rules of pertinent jurisdiction

� Stay organized and keep complete records, specifically about critical decisions and actions during the processes

� Track what was done, by whom, when & how it was done

� Maintain specific routine practices across cases/projects to increase efficiency and ensure critical steps are not missed

IT IS NOT IF PROCESSES/ACTIONS WILL BE SCRUTINIZED…

…BUT WHEN

BE PREPARED!

EDRM Umbrella

�EDRM’s Computer Assisted Review Reference Model

�The EDRM Talent Task Matrix

�EDRM Model Code of Conduct

� Information Governance Reference Model

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THANK YOU