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Bringing eDiscovery Home: The New In Situ Reference Model

This is the first article of a two-part eDiscovery series that explores the In Situ Reference Model and how it can help legal teams. The second article discusses various In Situ eDiscovery tools.


There is good news for corporate counsel who have long decried the exorbitant cost of eDiscovery, the resulting economic extortion of having to pay large settlements to plaintiffs that bring meritless cases, and the data security risks of having company documents in the hands of multiple vendors. The processing model devised during the infancy of eDiscovery is being superseded by a new model in which eDiscovery is processed completely in place (i.e., completely behind the company firewall). Goodbye to soaring costs, goodbye to having those discovery costs coerce settlements, and goodbye to having to manage copies of corporate records in the hands of multiple vendors.

Before going into the In Situ Reference Model, let’s recall its predecessor, the eDiscovery Reference Model (EDRM) model. 

Review of the EDRM model 

In the infancy of eDiscovery, lawyers were overwhelmed by the unprecedented volume of content to review. Brute force linear document review like that performed on productions of paper-based records simply wasn’t practical, and there were few in-house tools to cull potential production volumes.  

Doomsday predictions about potential discovery spoliation sanctions were repeated and amplified by eDiscovery vendors. Solutions for reducing volume in a defensible fashion were not integrated, and data was moved from one place to another, with more culling typically taking place at each step.

The EDRM was an industrywide effort to suggest the sequence of the various functions. The functions shown under the model were: 

  • Identify – Locating potential sources of electronically stored information (ESI) and determining its scope, breadth, and depth. 
  • Preserve – Ensuring that ESI is protected against inappropriate alteration or destruction. 
  • Collect – Gathering ESI for further use in the eDiscovery process (e.g., processing, review, etc.).
  • Process – Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review and analysis. 
  • Review – Evaluating ESI for relevance and privilege. 
  • Analyze – Evaluating ESI for content and context, including key patterns, topics, people, and discussion.
  • Produce – Delivering ESI to others in appropriate forms and using appropriate delivery mechanisms. 

Figure 1 illustrates a simplification of the model. 

 In-Situ-Fig-01-EDRM-Extract

Figure 1. Extracted portion of the EDRM.

Initially, collection might have required an outside expert or consultant. After collection, further processing took place outside the corporation with significant per gigabyte or per file fees as well as billable time for everyone involved. While current review platforms provide a variety of ways to analyze content, the costs are typically high enough that many companies now have an intermediate “pre-process and review” step where collections are culled after collection, but before final processing for review. In the worst-case scenarios, different vendors may be involved in each step in the process: collection, pre-processing, processing, review, and production.

Everyone along the way typically creates their own copies of incoming content as backups and then copies of the processed files that they output for use in the next step. Even when an individual vendor provides multiple functions (e.g., pre-processing, review, and production), each of those functions may involve making another copy of the data for those purposes, and those copies may be literally laying around for years. 

[Related: The Case is Closed, Where Are Your Documents?]  

 In-Situ-Fig-02-Handoff

Figure 2. As data is handed from vendor to vendor or function-to-function, additional copies are created and retained, effecting serious data privacy and security risks.

The In Situ eDiscovery Reference Model avoids virtually all those handoffs by having the content identified, preserved, processed, and analyzed in place (i.e., without making additional copies). 

 In-Situ-Fig-03-Model-11C-ed

Figure 3 The In Situ eDiscovery Reference Model

All the advanced eDiscovery culling and analysis tools can be applied within the corporation; behind its own firewall; and without the time, expense, and risk of shipping it off for processing. As explained below, this results in more than just reducing time, money, and risk; it enables a qualitatively better job of comprehensively selecting and culling content. 

The value of interactive, iterative analysis 

No single tool performs complete eDiscovery culling and selection. Keyword searching may identify some highly relevant emails, and email analytics can then identify the people who sent or received those emails, leading to the identification of other potential custodians by doing a domain name analysis of those emails. Thematic clustering can suggest other documents that seem to be discussing the same theme. The use of other additional tools can suggest where more relevant information might be found. Once new items are discovered or other items excluded, people doing the selection may want to reapply tools previously used on a different population of documents. 

In an external processing model, it may be difficult to iterate and interact with the documents because the only content available is information that has already been collected and externally processed. As a practical matter, this means that lawyers tend to over collect on the front end just because of all the transaction costs associated with going back for additional collecting and processing. 

Even if some documents will be sent out for a closer review by contract attorneys using an external review platform, the document population being sent can be greatly reduced and refined before that happens. 

A closer look at the In Situ eDiscovery Reference Model 

Having reviewed some of the problems with an external processing model for eDiscovery, let’s take a closer look at the In Situ Reference Model and talk about why it contains some of the items shown in Figure 3. 

Managed content: More than emails and loose documents 

In-situ-4While loose documents and emails get the bulk of attention in eDiscovery, the database icon serves to remind lawyers that there are information systems for more than those two document types. For example, SalesForce may track many significant items about the sales function, and HR databases may be crucial for some employment discrimination cases. 

Accounting and billing systems may have the most usable data relating to sales, inventory, and shipping even though documents like invoices or bills of lading contain small snapshots of what was in those systems. Lawyers should be alert to the possibility of providing outputs from databases in lieu of having to search for and produce less useful documents that might be found elsewhere in the company.

Managed dynamic content 

IN-situ-5-realThe managed content area includes icons for uploading, downloading, and synching. These are to remind lawyers that managed content is dynamic ⁠— it’s constantly changing. Content that is being managed may have been uploaded from elsewhere, and that may be a potential source of more information. 

Logs tracking downloaded data could also point to where data is being stored offline. Finally, synching could mean that virtually all the relevant information from the laptops and personal devices of various custodians is already stored in the collection.

Custodians: The myth of the purely technological eDiscovery process 

IN-situ-5Some eDiscovery seminars and presentations would have you believe that if you only have the right technology, eDiscovery will be simple and foolproof. Indeed, some of the tools are very effective in cases where there are no living, friendly witnesses. But it’s foolish to overlook the immense value of just talking to people who were involved in the events at the heart of a dispute. 

They can tell what data sources they used, the names and organizations of the people with whom they communicated, how they communicated, and many other potential things. Icons for custodians are at the top of the In Situ eDiscovery Reference Model to remind everyone that it’s best to start with the people who know the underlying facts and circumstances.

One of the best examples of the over-reliance on technology is the much-cited Blair and Maron study. In their study, the authors claimed that lawyers only found about 20 percent of what they were looking for using full-text search, with one of the reasons being that people who authored documents in different parts of a company used different terms to describe the same thing. Well, guess what? If the lawyers had talked to people from those different sections of the company, they might have been told about those terms without doing an expensive study. 

The virtualization of the custodian interview 

IN-situ-7When eDiscovery was new, there were several options for communicating with custodians: in-person interviews, group meetings in conference rooms, letters, or faxes. The best way to assess the knowledge and credibility of custodians is to visit them in their office and have them show you where and how things are kept. The problem is that this adds a tremendous layer of cost, time, and coordination to find mutually agreeable dates and times.  

One of the custodians in the icon group shows a monitor to remind lawyers that there is another option for interviewing custodians: set up a screen share option from their office. Not only does this establish a more personal connection between lawyer and custodian, it helps the lawyer assess potential credibility of the custodian as a witness and it also permits the lawyer to view the custodian’s screen as he shows how files are stored and how other unique software or systems are used. 

One other advantage of the screen share option is that the lawyer may also record the audio and video of the session for later evaluation. There are also multiple options to have the audio portion of the interview converted to text so it can be readily searched or reviewed. 

Day-to-day operations: Search 

In-Situ-Fig-08-MagnifierThe day-to-day section reminds lawyers that modern content management systems may have built-in search technology as well as optical character recognition (OCR) capabilities so that even image-only documents can be searched. Furthermore, full-text search can be augmented by further restricting searches based on other metadata such as custodian, author, date, type, or location. There should be no need for external consultants or software to provide this basic search capability. 

This extensive search functionality also provides a way to “trust but verify” the information provided by custodians. For example, if custodian Johnson disclaims ever having seen anything relating to “widgets” it’s easy to search her content to see if that’s true.

Day-to-day operations: Normal retention and disposition 

In-Situ-Fig-09-Day-to-DayThe calendar, lock, and trash can icons in the day-to-day functions area are intended to serve several functions. The calendar should remind lawyers that there can be organizational scheduling systems that contain valuable information, and that, as part of records management, items can be either scheduled for retention (i.e., locked down), or set for disposition (trash can). 

Legal holds are obviously ineffective if they are implemented after content has been improperly deleted. These icons are intended to remind lawyers that they can’t have unreasonable delays in putting items on hold because the operation of the regular retention and disposition system may improperly dispose of content that should have been retained.

In Situ eDiscovery tools: Legal hold 

In-Situ-Fig-10-Padlock-On-OffThe legal hold icon may be the most important icon in the model. Until something is placed on legal hold, the author or other people may be able to delete or change a document, or the retention schedule might be changed to permit destruction. However, once the legal hold is implemented, not even the document’s author can delete or change it.  

In contrast to the external processing model, items on legal hold are locked down. No copies need to be made to ensure preservation, and no copies need to be made to enable subsequent analysis. In fact, placing items on legal hold in the dominant enterprise system (Enterprise Office 365) launches several processes that enable several ways to examine and understand the documents (e.g., deduping, email threading, domain name analysis, conceptual clustering, and predictive coding).  

In the case of Enterprise Office 365, the cloud-based solution automatically applies additional computing and storage capabilities to create all the additional indexing that is required for those tools.  

The legal hold icon has an on/off icon in the center of it, because placing things on Legal Hold basically turns on a whole range of additional indexing and operational capabilities. 

For an in-depth discussion of the individual In Situ eDiscovery capabilities, read the second part of this series.

Conclusion 

The In Situ Reference Model is a real game changer. It puts corporate counsel in better control of the eDiscovery process, thereby reducing costs and data security risks, and making it much more economically feasible to fight meritless cases. Perhaps the most pleasant surprise in this new model is that the costs to implement it are relatively nominal. 

In fact, corporations that already are using enterprise licenses for Office 365 may be already paying for most or all of it already. One company interviewed for background on this story said that they save enough on eDiscovery costs on one case to pay for the whole Office 365 license for two years, so the potential cost savings are particularly significant for companies with any volume of litigation.

About the Authors

Richard StevensRichard Stevens is executive vice president, chief legal officer, and corporate secretary at Old World Industries, LLC. He has also served on Old World’s board of directors. Prior to Old World, he worked at BP and Amoco Corporation and as a commercial litigator in private practice in Chicago. [email protected]

Anne KershawAnne Kershaw is a lawyer and consultant who has been immersed in eDiscovery and information governance for many years. She co-authored the Judges’ Guide to Cost-Effective E-Discovery, teaches at Columbia University, and has written earlier articles for ACC Docket on discovery topics. [email protected]


Robert RogoffRobert Rogoff is vice president of information services at Old World Industries. His responsibilities include Cyber Security, eDiscovery, and IT infrastructure at OWI. [email protected]



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