Electronic Discovery Reference Model (EDRM) XML Schema
Relevant Records vs Irrelevant Records
In a lawsuit, e-discovery forces the party holding records that are relevant to the lawsuit (the disclosing party) to reveal them to the other party (the receiving party). The purpose of e-discovery is solely to disclose relevant records. It is not to disclose more information than is required, and it is not to enable a “fishing expedition” by the receiving party through the records of the disclosing party. [In lawyers’ parlance a “fishing expedition” is an unrestrained trawl through an opponent’s records in search of unspecified wrongdoing, such as bribes, kickbacks or misallocation of funds.]
For the disclosing party, over-disclosure is bad. Inevitably the volumes of data disclosed in e-discovery will contain more than is required. That excess data opens the opportunity for fishing by the receiving party, the adversary.
For example, imagine a lawsuit over a contract. In e-discovery Party A discloses e-mails pertaining to the contract. But receiving Party B may accidentally discern from the e-mails (and the attachments and meta-data associated with them) evidence of a different topic, such as apparent unauthorized use by Party A of trademarks owned by Party B. The trademark topic was not the purpose of the e-discovery (it’s not the subject of the lawsuit), and Party A did not need to disclose evidence on that topic.
Accordingly, disclosing Party A aims to control e-discovery and keep it within rules. Party A can better achieve its goal if disclosed data are broken into little units and Party A precisely explains each of the units.
The division of data into precisely-explained units is one potential outcome of the Electronic Discovery Reference Model (EDRM). EDRM proposes to set a uniform framework for e-discovery and standards for the exchange of e-discovery data. It promises to enable tools for computer-aided review, sampling, snipping, tagging, and explaining of units of disclosed data.
One EDRM project is crafting an XML Interchange Format. XML is all about tagging data elements so they can be processed (often automatically) and understood. EDRM’s XML Format provides for tags like “Description” and “CustomDocumentInfo” to be associated with each unit of disclosed data, such as an e-mail message. These tags can contain free-form text. These text tags are an opportunity for the disclosing party to annotate, explain and interpret the disclosure. A text tag can, for example, show why a record (i.e., e-mail X) is being disclosed, what it means and what its context is. It might explain that e-mail X is a direct part of the employee discussion about the terms of the contract that is the subject of the lawsuit. Such a tag can subtly help the disclosing party restrain the purpose for which the record is used.
Further, a savvy disclosing Party A could use these tags to help explain why record X is disclosed but not record Y. In other words, in the tags Party A might make the case for why e-mail X is disclosed (it directly relates to the contract in question), but why the 10 replies to e-mail X are not disclosed (they don’t relate to the contract). Party A could put in the tags explanations about the search criteria (search methogology or algorithm) it used to find and produce e-mail X, while not finding or producing the 10 replies. For example, Party A might explain it searched for records containing the concept "mineral contract," but not for all the records touching on a record containing that concept.
Hence, a disclosing party could possess more tactical options if its archives (such as e-mail and instant messages) were in a system that is compatible with EDRM’s XML Format. (I'll call these tactical options an "edge," but that's not to imply the disclosing party is getting anything unfair.) When the disclosing party is required to turn over e-mails in e-discovery, it can use text tags to tell its side of the story with respect to each one of those e-mails.*
This edge grows more important as more of the records subject to e-discovery become small e-mails and instant messages (IM, Twitter, iPhone, BlackBerry or cell phone text), rather than larger “documents” like letters and memos. The reason is that, roughly speaking, courts require that if part of a record must be disclosed, then the disclosing party must turn over the whole record, even if it contains other, irrelevant material.
Update: The disclosing party might use an XML tag to place a warning on particular units of data. For example, the tag might warn that a particular email contains sensitive personally-identifiable information, which must be kept secure and the review of which must be limited to only necessary personnel. See the story of a medical malpractice defense law firm that lost patient records connected with a lawsuit, thus causing the patients to be notified that their data had suffered a breach.
Related Article: How to Document Instant Messages