Here’s the Best Way to Eliminate Disputes in Discovery

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[author; Doug Austin, Editor of eDiscovery Today]

If you know your Federal Rules of Civil Procedure (FRCP), you know that Rule 26(f) dictates a “conference of the parties” (also known as the “meet and confer”) “as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).” And Rule 26(f)(3) addresses the discovery plan as part of that meet and confer, which includes addressing “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced”.

That’s where the ESI protocol comes in – it is the document that formalizes how issues related to ESI will be handled in your case.

Planning for the ESI Protocol

When it comes to planning for the ESI protocol, you need to start thinking about it as soon as the case becomes a reality (which may be even before it’s filed). And you need to think backward to plan for it, which means looking at the EDRM model backward, starting with the goals to be accomplished for the end phases and using that to guide how you approach the ESI protocol.

Begin with the Presentation phase for the ESI that you plan to present and identify that ESI (and determine whether that ESI is in your possession, your opponent’s possession or whether you need to request it from a third party). Determine what ESI you need to preserve and collect to meet your production obligations. Your evidentiary needs will determine what form of production you want to stipulate in the ESI protocol, typically either image/load file productions or native file productions (which provide the most metadata). Starting “backward” and determining your end goals is important to preparing an ESI protocol that fits the needs of your case.

I’ve helped many clients draft their ESI protocols or provided a technical review of the protocols they drafted. Of course, opposing counsel often propose their own ESI protocol, so the earlier you can propose yours to them, the earlier you can identify areas of difference and (hopefully) negotiate an approach that both sides accept. The result (whether agreed upon or Court ordered) is an ESI protocol that establishes the expectations for handling discovery of ESI among all parties and the Court. It’s literally your “blueprint” for discovery.

Contents of an ESI Protocol

ESI protocols can vary widely, but most of them include at least the following:

  • Definitions to define terms such as ESI, native file, metadata, load file, etc.
  • A plan for identifying Sources of Data, including custodians, non-custodial data sources, third-party data sources and inaccessible data
  • Standards for Preservation of ESI, which also includes what types of data need not be preserved (e.g., slack/fragmented data on a drive, temporary internet files, etc., which are typically not needed unless a forensic investigation is expected).
  • How Privilege Designations will be handled, addressing handling of inadvertent disclosures under FRCP Rule 502, etc.
  • Handling of Redactions, including how redactions should be handled for files that would otherwise be produced natively
  • Search Methodology, in terms of agreed upon approach (e.g., keyword search, predictive coding, etc.) and often specifics of the approach as well (such as specific search terms used to locate potentially responsive ESI)
  • Form(s) of Production, which is often the most detailed section of the ESI protocol, addressing everything from handling paper vs. electronic documents, production of electronic documents in image vs. native format and the list of metadata fields to be produced. There can be several variations for handling certain types of documents differently – for example, it’s common these days in image/load file productions to still produce Excel files natively as Excel files are often not formatted for printing. The variations can be extensive.
  • Manner of Production, which addresses things like how the productions will be delivered (e.g., hard drive, SFTP, etc.), inclusion of cover letter and whether there will be an approach for phased or rolling productions.
  • Liaison, identification of a liaison for eDiscovery issues for each side who is best equipped to address those issues (see the third best practice below)

Best Practices for ESI Protocols

Here are three best practices for preparation of ESI protocols:

  1. Start with a Template: Many (but not all) of the ESI considerations will be similar from case to case, so starting with a template can make the process for drafting an ESI protocol easier. Why reinvent the wheel when you don’t have to?
  2. Customize to the Needs of the Case and Circumstances of the ESI: However, each case is different and the ESI associated with it may be different, so you need to account for the variations. Case in point: in the Nichols, et al. v. Noom Inc., et al. case I covered on eDiscovery Today last week, the defendants made extensive use of hyperlinked documents instead of embedded attachments to emails, but the ESI protocol negotiated by the parties and entered by the Court didn’t address those, leaving the Court to rule on how they should be handled (much to the plaintiffs’ dismay).
  3. Get Your “Geek” Involved Up Front: Unless you’re an eDiscovery expert, it’s important to get an eDiscovery/technology expert involved early on to identify the technical considerations associated with discovery and ensure they’re addressed in the ESI protocol.

ESI protocols are the best way to eliminate disputes in discovery, or at least get them to the forefront quicker to resolve them. Use these best practices to achieve the desired outcome for discovery in your case.

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