For discovery lawyers and professionals, creating and maintaining efficient, repeatable and defensible discovery-related processes for their clients is paramount. Since 2005, the Electronic Discovery Reference Model (EDRM) has been the widely accepted framework for the discovery process. The EDRM is a useful visualization that walks through each step of the discovery process, and it is also a useful tool for analyzing discovery-related processes to identify needed enhancements and potential problems. But with constant change in the discovery sector, is it time to reimagine the EDRM? Perhaps the drumbeat of new technologies, capabilities, competitors and business models should propel discovery teams to rethink each stage of the EDRM to incorporate advances in automation, artificial intelligence and technology. But first, think about your client's discovery-related goal. Is the client's goal to fulfill its discovery obligations in a simple, repeatable way in every litigation or investigation? In other words, is the goal an easy-to-manage, one-size-fits-all approach? Or is the client's discovery goal to find the best approach on a case-by-case basis that reflects both the cost and the risk, but might require more resources to manage?

Neither answer is better than the other, but both questions focus on the client experience. And for that, legal design principles can be used to reimagine the EDRM. Legal design is an important tool that our team at Morgan Lewis & Bockius has woven into all aspects of our practice. In every facet of our practice, we seek out the voice of the client and design every process, every product and every service to meet the client's needs and enhance the client's experience.

What Is Legal Design?

Legal design is the practice of applying human-centered design to improve the usability, functionality and acceptance of legal tasks and services. The concept has gained traction in the last few years and is being applied in many areas of law and to diverse legal tasks, such as social justice reform, access to legal assistance, contract management and automation of other legal documents.

At its core, legal design is not all that dissimilar to the purpose of the EDRM. Legal design is also a conceptual, iterative process that can be leveraged in different ways to improve one or many aspects of a service. The major difference is that, while the purpose of the EDRM is to describe the process of data management at each stage of the EDRM, legal design focuses on optimizing the process based on what the user experiences as she interacts with the data through each stage of the process.

By applying legal design principles to each stage of the EDRM, discovery teams can leverage the information captured from user experience to identify opportunities to improve their discovery model and to define the goals of an engagement to align with their client's expectations. The first step in legal design is goal setting.

Understanding Your Client's Discovery-Related Goals

The first step in legal design is to understand a client's goals. In discovery, is it to minimize costs? Reduce risk? Handle discovery in a manner that is least intrusive to the business or custodians whose data is to be collected? Next, what stage of the EDRM gives the client the greatest sense of unease as it relates to the client's goals? Are the goals the same for each stage of the EDRM or, for example, are the goals for the collection stage different from those arising at the review stage? Does the client want to introduce innovation into its discovery process, or does it prefer to stay with traditional methods and tools?  It is this engagement with and understanding of a client's goals that is the foundation of legal design.

Refining Processes to Create Client-Centric Goals

How do you apply legal design to the EDRM and what is the value in doing so? Using the preservation stage as an example, what are your client's goals in preserving data? Do the goals depend on the matter or does the client prefer the same preservation process for its entire litigation and investigation portfolio? Does the client prefer to use only traditional methods of preservation or is the client open to using new technology? Does the client want the lowest risk approach to preservation, the lowest cost, or something in between? By asking these questions about everyday legal tasks, you can ensure that legal design establishes processes surrounding legal work that are transparent, accessible and visually clearer to the client, and, most of all, meet the client's goals. In developing a preservation strategy, the client may prefer a “scorched earth” approach to preservation when faced with a second request from the FTC that involves imaging hard drives, pulling backup media, and so forth. A third-party subpoena, however, may result in de minimis preservation that involves simply collecting the requested documents and producing them.

It is important to note that legal design requires collaboration of interdisciplinary teams. This means not only working directly with your client but also engaging with professionals from other departments or business areas in the client's organization including, but not limited to, information technology personnel, personnel tasked with handling the preservation and collection of data, recipients of legal holds to understand how the preservation process affects that class of individuals, etc. This means getting individuals from different departments or business areas to share their experiences and to work together to break down silos in organizational structures to develop a better approach that reflects the company's goals. Once those goals are identified, a process designed through the collaboration of stakeholders will emerge. Compare this to the typical approach used in most litigations and investigations where the discovery process is inflicted on the stakeholders. With legal design, implementation and execution of the process stand a far better chance of adoption by the stakeholders and, ultimately, will lead to better success—as defined by the client—than the current approach.

Tess Blair, a partner at Morgan Lewis & Bockius, is the founder and leader of the firm's eData practice, which seeks to combine great lawyering with technology and process to deliver real efficiency and value to clients. She and her team offer full-cycle electronic discovery and information governance services to organizations across the globe.

Tara Lawler, a partner with the firm, focuses her practice on e-discovery, information management and data privacy. She works with companies in all phases of e-discovery and information management, including counseling on various preservation, collection, data processing, document review and production-related strategies.

Josh Rosenzweig, product architect at the firm, leads the research and development function within the firm's eData practice.