The Phases of E-Discovery

– By Judge Herbert B. Dixon, Jr., Courtney Ward-Reichard & Martin T. Tully

Judge Herbert B. Dixon, Jr. is a Judge of the Superior Court of the District of Columbia. Courtney Ward-Reichard is an attorney in the Minneapolis law firm of Nilan Johnson Lewis, where she concentrates her practice on complex commercial and products liability litigation, with an emphasis on e-discovery. Martin T. Tully is a litigation partner with the Chicago office of Akerman LLP, where he is also a member of the firm’s E-Discovery and Information Management practice group.

This post is excerpted from the materials for their ABA TECHSHOW 2015 presentation “Don’t Get in Over Your Head: Collaboration in E-Discovery” to be presented on Friday, April 17 from 3:45-4:45 PM.

The ever-increasing amount of electronically-stored information (“ESI”) means that careful planning, open communication and efficient workflow are essential through all phases of the e-discovery process. Collaboration is essential, between lawyers on opposing sides as well as between lawyers and their clients. Both courts and commentators have urged parties to cooperate on various issues throughout the discovery process. Indeed, most would now agree that “failure to engage in cooperative discovery is likely to increase the costs, and complexity, of litigation to the detriment of everyone involved.” Paul W. Grimm & Heather Leigh Williams, ‘The [Judicial] Beatings Will Continue until Morale Improves’: The Prisoner’s Dilemma of Cooperative Discovery and Proposals for Improved Morale, 43 U. Balt. L. F. 107, 115 (2013). Failure to meaningfully confer, collaborate and cooperate also needlessly increases the number of discovery disputes that must be resolved by the courts, which can result to costly admonishments, and other negative consequences, to both litigants and their lawyers. Case in point: In February 2015, U.S. District Judge Rosemary Collyer issued what she sarcastically entitled the “Order On One Millionth Discovery Dispute,” reflecting the court’s professed exhaustion with the parties’ seemingly endless bickering over discovery issues. Herron v. Fannie Mae, et al., Civil Action No. 10-943 (RMC) (D.D.C., Feb. 2, 2015).

In the ABA TECHSHOW 2015 presentation “Don’t Get in Over Your Head: Collaboration in E-Discovery,” the authors will discuss how collaboration leads to fair results, while also managing and containing costs for all parties, and reducing the risk of judicial exasperation. This excerpt from the materials for that presentation outlines the phases of the e-discovery process.

The Phases of E-Discovery

The Electronic Discovery Reference Model, or EDRM, is the most commonly used framework for understanding the process of e-discovery. The phases of the EDRM include:

  • Information Management – how ESI is stored and managed within an organization;
  • Identification – determining the location and custodians for ESI within an enterprise;
  • Preservation/Collection – issuing effective litigation holds and collection of potentially responsive and relevant ESI;
  • Processing/Review/Analysis – converting ESI into a reviewable format, and reviewing and identifying responsive and relevant documents;
  • Production – providing documents to opposing counsel in an acceptable format; and,
  • Presentation – presenting documents to fact finder in motion practice or trial.

Each stage of the e-discovery life cycle presents opportunities for cooperation and collaboration.