Technical Competence ‘mini’ Litmus Test (Part II)

In Part I of the Technical Competence ‘mini’ Litmus Test, we focused on general questions you could ask to gauge your firm’s current technical competence, (“eCompetence”).  Hopefully you have your notes from the draft custom syllabus that was formed by answering the questions in Part I.  If you have not read Part I, I would encourage you to do so as it is a valuable foundation for Part II.  

So what’s next?  Some of the local bars have actually gone so far as to outline areas of which they are expecting lawyers to be knowledgeable, which I would encourage you to explore.  Since the electronic discovery reference model (EDRM) is a common topic of discussion in the legal industry, Part II of this litmus test involves your familiarity with the EDRM.  The Federal Rules of Civil Procedure (FCRP) apply to these phases and each phase includes a workflow and specific technologies that need to be a part of your learning plan.


Here are some questions that will help you determine how proficient you are with each phase of the EDRM:

Information Governance 

  • Does your corporation or your client have processes in place for information governance?
  • Does your corporation or your client have processes in place for handling a litigation event?
  • Does your corporation or your client have processes in place for handling electronic discovery?
  • Can you describe the retention/destruction policy for your corporation or your client?
  • Can you describe the disaster recovery/data backup plan?



  • Do you understand the differences between computer networks, shares, clouds, and examples of removable media?
  • Would you recognize a data map?
  • Do you have processes in place for preservation?
  • Do you have processes in place for automated litigation holds?
  • Do you have a toolkit of custodian interview questions available for customization?


  • Do you know if someone in your organization maintains a chain of custody log and if so what information is captured in the event of possible spoliation?
  • Can you name three to five things to equip yourself in terms of ESI discussions for a successful meet and confer demonstrating cooperation and saving costs?
  • Based on your findings are you able to create a list of possible objections you might foresee?
  • Do you believe that threat of electronic discovery against an uneducated and unprepared opposing party provides a powerful negotiating tool?


  • Are you comfortable with the different methods of how data is collected and the pros and cons associated with them?
  • Do you consider it acceptable for your client to simply forward their email to you?
  • Are you familiar with the different file delivery types?
  • Do you understand how to speak in terms of Bytes?  
  • Do you have a necessary understanding of the data involved before you make blanket objections, representation or commitments to the client, opposing counsel or the court?

This should be plenty to start absorbing and figuring out where you land in regard to the EDRM.  I want to congratulate you if you can confidently answer these questions. That means you’re ahead of the game.  I also want to congratulate you if you cannot, but you took time to read through this piece.  To me, that that means you’re interested in moving forward.  Again, please keep your notes handy, there is one more piece, Part III on the way.