WEBINAR ALERT : June 16th, 2026 - Delegated Design in Preconstruction
The rapid expansion of electronically stored information (“ESI”) has fundamentally reshaped litigation. Email, collaboration platforms (e.g., Teams, Slack, Google Chat), cloud storage, mobile devices, and enterprise systems generate vast amounts of potentially discoverable data. In this article, we discuss ways to streamline the eDiscovery process and mitigate the cost of discovery.
Key Takeaways
Early decisions drive outcomes
Choices made during information governance, identification, and preservation have a significant impact on eDiscovery cost, risk, and efficiency.
Proportionality is essential
Targeted custodians, reasonable search terms, and negotiated ESI protocols help prevent unmanageable data volumes and unreasonable costs.
Review is the primary cost driver
Thoughtful processing, clear review protocols, and efficiency techniques such as mass coding can substantially reduce review costs.
Protocols and protections matter
Well‑drafted ESI and review protocols, together with clawback and non‑waiver provisions, reduce disputes and privilege risk.
Expert management pays dividends
Involving experienced eDiscovery professionals and actively managing vendors and data throughout the case leads to defensible, cost‑effective discovery.
The Electronic Discovery Reference Model and Best Practices for Managing eDiscovery
As a result of the volume of discoverable ESI generated by various systems and platforms, electronic discovery frequently represents one of the most significant cost drivers—and risk areas—of modern litigation. To manage these challenges, eDiscovery professionals rely on the Electronic Discovery Reference Model (“EDRM”) and a set of established eDiscovery best practices designed to promote efficiency, proportionality, and defensibility.
The Electronic Discovery Reference Model (EDRM)
The EDRM is the most widely accepted framework for understanding and managing the eDiscovery lifecycle. It identifies nine interconnected stages:
- Information Governance
- Identification
- Preservation
- Collection
- Processing
- Review
- Analysis
- Production
- Presentation
For practical application, these nine stages are often consolidated into five functional phases: (1) information governance and identification; (2) preservation and collection; (3) processing, review, and analysis; (4) production; and (5) presentation. Each phase benefits from early strategic planning and the involvement of experienced eDiscovery professionals.
Information Governance: The Foundation
Effective eDiscovery begins well before litigation. Information governance encompasses the policies and systems that control how data is created, retained, stored, and disposed of in the ordinary course of business. Organizations with mature governance programs are far better positioned to respond efficiently to discovery obligations.
Key components include clear retention schedules, reliable legal hold processes, standardized document management practices, and thoughtful backup strategies. Poor governance—such as fragmented data sources, outdated systems, or inconsistent retention rules—can dramatically increase discovery costs and exposure. Strong governance enables counsel to limit discovery scope and make defensible decisions at the outset of litigation.
Identification and Preservation: Setting Appropriate Limits
Once litigation is reasonably anticipated, identification and preservation become critical. Identification focuses on determining where relevant ESI resides, which custodians and systems are implicated, and what time frames are relevant. Early engagement with information technology and business stakeholders is essential to avoid missed data sources or unnecessary over‑inclusion.
Preservation typically involves implementing legal holds to suspend routine deletion of potentially relevant data. Preservation must be timely and proportional. Over‑preservation increases storage and review costs, while under‑preservation risks spoliation claims. Documenting preservation decisions and periodically reassessing them as a case evolves remain essential best practices.
Collection: Targeted and Defensible
Collection involves gathering preserved ESI in a forensically sound and legally defensible manner. Best practices favor targeted, strategic collection rather than wholesale harvesting of data. Negotiating ESI protocols early, where appropriate, can help establish reasonable limits on custodians, data sources, date ranges, and collection methods.
In certain cases, in‑house resources or certified eDiscovery specialists may assist with collection or preliminary culling, such as applying agreed‑upon search terms. When properly documented, this approach can reduce vendor costs while maintaining defensibility. Regardless of who performs the collection, maintaining a clear chain of custody is critical.
Processing and Review: Managing the Cost Drivers
Processing prepares collected data for attorney review through steps such as deduplication[1], deNISTing[2], email threading[3], and metadata extraction[4]. Thoughtful processing decisions can significantly reduce review volumes and associated costs.
Review remains the most expensive phase of eDiscovery. Effective review requires clear protocols, well‑designed document coding schemes, and consistent training. Overly complex coding requirements slow reviewers and increase errors, while overly simplistic approaches may fail to capture key issues. Striking the right balance is essential.
Where allowed by agreement or court order, efficiency techniques—such as mass coding of non‑responsive or confidential documents—can materially reduce costs without compromising accuracy.
Production: Precision and Protection
Production requires both technical precision and strategic planning. Production specifications should address format (native versus image), metadata fields, confidentiality designations, and privilege logging requirements. Well‑negotiated ESI protocols can significantly reduce disputes and re‑work.
Clawback provisions and protective orders are other key best practices. These protections reduce the risk of waiving attorney client privilege and attorney work product protection and allow for more efficient review processes.
Presentation: Leveraging ESI Effectively
The final EDRM stage focuses on using ESI effectively in depositions, hearings, and at trial. Decisions made during earlier stages—such as issue coding and exhibit tagging—directly affect counsel’s ability to locate and present key documents. Close coordination between trial teams and litigation support ensures ESI is an asset rather than a distraction.
The Importance of Management and Expertise
Across all EDRM stages, proactive project management is essential. Certified eDiscovery specialists and experienced project managers play a critical role in budgeting, vendor oversight, protocol compliance, and ongoing data assessment. Continuous monitoring of data volumes and costs allows teams to adjust strategy and avoid unnecessary expense.
Both in‑house and outside counsel share responsibility for effective eDiscovery management. In‑house teams benefit from insisting on early eDiscovery expertise and transparency in vendor pricing. Outside counsel must be prepared to negotiate reasonable discovery scope and resist overbroad demands, supporting objections with concrete cost and burden data.
Conclusion
The EDRM provides a proven framework for managing electronic discovery, but successful outcomes depend on disciplined execution. By emphasizing early planning, proportionality, and experienced oversight, parties can manage eDiscovery in a way that is cost‑effective, defensible, and aligned with litigation strategy. As data volumes continue to grow, adherence to these best practices is essential for modern litigation. If you would like more information about eDiscovery best practices, please contact one of the experienced members of Smith Currie Oles’s eDiscovery Litigation and Data Management team.
Smith Currie Oles LLP provides comprehensive legal services to all parts of the construction industry across the nation. Smith Currie lawyers have decades of demonstrated success representing construction and federal government contracting clients “From the Ground Up,” including procurement matters, contract formation and negotiation, project administration, claims prosecution and, when necessary, in litigation and other forms of dispute resolution.
The views expressed in this article are not necessarily those of ConsensusDocs. Readers should not take or refrain from taking any action based on any information without first seeking legal advice.
[1] Deduplication is a widely accepted process wherein exact copies of the same document are eliminated from a production of documents.
[2] DeNISTing is a data-culling process that removes irrelevant, known system and application files from collected data.
[3] Email threading is a feature that groups related messages—original emails, replies, and forwards—into a single, chronological conversation for production purposes.
[4] Metadata extraction is the collection of “data about data” such as file type, size, and creation date.