Historical ESI Highlights – Part VII – The Sedona Conference and EDRM

It would be difficult to overstate the significance of The Sedona Conference and the EDRM in shaping the contours of ESI in civil litigation.

Kenneth J. Withers is the Deputy Executive Director of The Sedona Conference.  In “The Sedona Conference and Its Impact on E-Discovery,” Chap. 35 in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), Ken described the unique “dialogue, not debate” approach of the Sedona Conference process developed by the late Richard G. Braman.  Ken wrote that:

The mission of the Conference is “to move the law forward in a reasoned and just way through the creation and publication of nonpartisan consensus commentaries and through advanced legal education for the bench and bar.”

The Sedona Conference certainly has accomplished that goal. One of its leading publications was the original “The Sedona Principles” (2003) that shaped the e-discovery field.  For example, an early Sedona draft was cited in Zubulake v. UBS Warburg, 229 F.R.D. 422, 440 (S.D.N.Y. 2004).

Ken also points out that the Sedona guidelines “heavily influenced the deliberations of the Civil Rules Advisory Committee of the Judicial Conference that ultimately led to the 2006 amendments to the Federal Rules of Civil Procedure.”  By 2020, Ken reported that the Guidelines had been cited in over 150 published decisions and almost 1,000 secondary sources.

Sedona’s many influential and practical publications are available free of charge. Ken points out that: “Each iteration of The Sedona Principles has been preserved and is available for comparison at https:// thesedonaconference.org/publication/The_Sedona_Principles.”

He notes that: “The Sedona Principles was the first and is still considered the most authoritative guide for civil litigators and courts.”

Another influential and important mold for ESI and e-discovery is the “EDRM model.”  The Electronic Discovery Reference Model was created around 2005 by George Socha and Tom Gelbmann to improve e-discovery standards.  See What Is the EDRM (Electronic Discovery Reference Model)? (pagefreezer.com).

EDRM states that: “Since its original creation in 2006, the now iconic EDRM diagram has been downloaded from the EDRM website many tens of thousands of times, and referenced throughout the industry in media articles, blogs and e-discovery training materials.”  The model provided a formal framework for the process of handling ESI, going from left-to-right.

EDRM’s website explains:

The EDRM diagram represents a conceptual view of the e-discovery process, not a literal, linear or waterfall model. One may engage in some but not all of the steps outlined in the diagram, or one may elect to carry out the steps in a different order than shown here.

The diagram also portrays an iterative process. One might repeat the same step numerous times, honing in on a more precise set of results. One might also cycle back to earlier steps, refining one’s approach as a better understanding of the data emerges or as the nature of the matter changes.

The diagram is intended as a basis for discussion and analysis, not as a prescription for the one and only right way to approach e-discovery.

EDRM publishes a number of valuable guides for its stages. To provide only one example, the EDRM Identification Guide provides a detailed checklist for finding and mapping potentially responsive information. EDRM also provides a number of published standards.

Duke Law School acquired EDRM in 2016.  At that time, Duke described it as “the leading standards organization for the e-discovery market.”  Duke explained that “EDRM provides resources to improve e-discovery and information governance, including standards, best practices, tools, guides, and test data sets.”  George Socha, co-founder of EDRM said:

We are proud of the significant impact EDRM has made on education and practices in electronic discovery and information governance since 2005. The achievements of EDRM are a direct result of the hard work of many legal and technology practitioners whose efforts and expertise have improved e-discovery and information governance practices and ultimately the judicial process.

Id.

In 2019, Mary Mack and Kaylee Walstad acquired the EDRM from Duke Law. EDRM reports that Duke’s “Bolch Judicial Institute will remain involved in the work of the EDRM community as a valued partner.” EDRM is a for-profit entity that is “open to all – no membership required.”[1]

In a prior blog, I discussed “The Checklist Manifesto.”   The publications of both organizations provide checklists on steroids.  They are important resources.

History is important.

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[1] This blog cannot and does not describe all of the offerings of EDRM.  See EDRM Global Advisory Council – EDRM.  EDRM hosts an excellent monthly discussion on “Important eDiscovery Case Law  (brighttalk.com)“