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It's Not All About Judge Scheindlin

Mark DiamondA famous The New Yorker magazine cover cartoon by Saul Steinberg depicts the world as seen from New York's 9th Avenue where 10th Avenue and the Hudson River are prominent, while New Jersey, the rest of the U.S. and Asia are only a small strip of land beyond the greater metropolis. The dialogue around e-discovery by in-house practitioners and vendors follows a similar mindset, with the e-discovery process as the center of the world and records management and other information governance disciplines reduced to small mental strips of land in the distance.

At any e-discovery conference or vendor webinar, one is likely to hear about Judge Scheindlin's latest decision, recent e-discovery sanctions, computer vs. human review and probably even more discussion on Judge Scheindlin's latest decisions. (Vendors love to talk about Judge Scheindlin.) This e-discovery conversation focuses mainly on what companies should do once litigation is upon them, and there's little talk about how companies can do a better job of controlling their information beforehand. Too much of the conversation, in my view, is on fire fighting, and not enough on fire prevention.

The industry standard for e-discovery is the Electronic Discovery Reference Model ( created by George Socha and Tom Gelbmann. The EDRM breaks the discovery process into eight distinct phases: Information management, identification, preservation, collection, processing, review, analysis, production and presentation. The latter seven "projects" are useful for describing and delineating the steps surrounding the discovery process. This part of the model is useful and accurate, and the model graphic is both intuitive and informative.

The lion's share of litigation readiness is delegated to the most important component, the first box in the model, Information Management. In 2009, the EDRM group expanded the information management box into its own separate model (actually a model within a model) called the Information Management Reference Model (IMRM). This model is depicted in a multi-color graphic detailing a unified governance framework encapsulating a recycle diagram within a pie chart of stake holders. In other words, unlike the elegant EDRM, the IMRM model looks like it was created by a Big 4 consulting firm - pretty graphics, lots of circles and arrows, official-looking, somewhat confusing and not particularly useful or helpful. You can tell this chart was created by committee - anything and everything is crammed into one picture. In short, the IMRM fails to create a clear framework for information governance.

The idea that records management, archiving systems, change management, training and other information governance disciplines are interesting places for e-discovery specialists to visit on occasion, but that "frankly I'd rather stay in Manhattan," leads to bigger e-discovery fires when they occur. Good information governance and e-discovery require a cross-discipline approach, requiring effective ongoing management of information, as well as clear and defensible process execution during discovery.

My advice is to get out more often. You may be surprised to find better practices in a wider world. There actually is life west of the Hudson.

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Mark Diamond

Mark Diamond, Founder & CEO of Contoural, Inc., is a regular contributor to Inside Counsel on Litigation Readiness and Records Information Management. You can e-mail...

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