If you were to ask most attorneys to describe the process of discovery, they may tell you it is a necessary facet of any case that tends to bring on quite the headache (actually, they might just tell you it’s a total pain). Along with pursuing clients’ success by attending court appearances or drafting pleadings for presentation to a judge, attorneys are also responsible for collecting documentation from their clients and turning it over to their opposing counsel, all while making sure to follow local and state guidelines.
Discovery is the most expensive and time-consuming aspect of any given legal dispute, and it is often a vital step to reaching a resolution. It can include exporting exhibits ranging from photos to bank statements to forensic computer images, and the influx of electronically stored information (ESI) has turned the already daunting task even murkier for some law firms. Fortunately, firms can establish ESI protocols to alleviate confusion and solve discovery issues before they even arise.
Despite its importance, many attorneys will graduate law school with little to no knowledge of common discovery practices. Law schools do not traditionally teach these procedures in depth, so individual firms are often left to fend for themselves when it comes to deciding how to go about relaying ESI or setting time and breadth standards for discovery requests. Although it may seem like a freedom or leniency granted, the lack of regulation can cause a lot of problems, especially when technological literacy ranges vastly from attorney to attorney.
It’s safe to say there is a growing need for additional governance and education within this critical step of the legal process, which is why we highlighted ESI protocols in our webinar on Comprehensive Ediscovery Case Management. Attorneys who build solid ediscovery protocols and work to advance their office’s technological fluency will begin to find success through this essential and often overlooked step.
Developing ESI Protocols: Where to Start
So, how can a firm create consistency and ease while handling their electronically stored information (ESI) and navigating ediscovery? They can start by forming a diverse committee among the firm made up of partners, associates, paralegals, and other staff members who can offer individualized perspectives. Then, this committee may prepare two related but distinct documents:
- Internal ESI Protocol – How is ESI collected, reviewed, and exported within the firm to opposing counsel?
- External ESI Protocol – How will each party access ESI and produce it to the other side?
Internal ESI protocols are to be decided and followed within the confinement of one firm, while external ESI protocols are to be discussed and agreed upon by all counsel of record at the Rule 26(f) Meet and Confer. Then, they will be drafted, submitted, and entered by the court in the form of an order. The protocols will establish a “rule book” that answers questions on issues like:
- Sources of documentation (custodians, servers, third party data sources)
- Metadata (information about the documents themselves)
- Date parameters (the span of months or years of documentation required to be disclosed)
Answering these questions at the outset of a case allows for ease, timeliness, and consistency in discovery. Once you think through these questions, save a template of your protocols, implement associate and paralegal training, and make slight alterations as required by each case.
Why Implement ESI Protocols?
In cases where clear ESI protocols are implemented, there is proven to be less friction, less litigation, and less necessary motion practice. It’s common knowledge that most judges do not welcome discovery pleadings with open arms. Entering into an ESI protocol with opposing attorneys prior to the start of discovery processes will not only save your client money on litigation costs, but will also spare individual attorneys the hassle of reinventing the wheel with every new case obtained by a firm. So remember, ediscovery protocols = less litigation = happy judge.
What else should be included in your ediscovery protocols?
- Date ranges (Are you requesting documents from the past year? Three years? Ten?)
- What documentation is actually relevant, and what is overkill?
- Which devices are to be searched / reviewed?
- What format will ESI be produced in?
- Nail down your definitions (Start with the basics – what is a document?)
- Which metadata fields will you include in your productions, and which do you expect to receive from opposing counsel? Make sure the metadata is useful for cutting down review time.
- What type of ediscovery software will you use for review, and how will you share productions? Will either party use additional review technology, such as predictive coding?
Still Not Sold On the Necessity of ESI Protocols?
The benefits are in the consistency. Maintaining a dependable outline displaying how data will be collected and produced will result in a revolving door effect when it comes to a firm’s discovery practices – when the time comes to issue a subpoena or to answer a request for production of documents, your firm will have a lovely road map to follow along the way.
ESI protocols are essential – rather than just helpful – for paralegal and associate onboarding. Implementing a solid ESI protocol will ensure new hires and “not-so-tech-savvy” legal partners alike have the ability to grasp and execute ediscovery blueprints. Finally, and perhaps most important of all, clients undergoing mediation, negotiation, or settlement will benefit from the insertion of internal and external protocols due to lowered costs.
Picture This: Ediscovery Without Protocols
After reading this post, if your firm congruently decides none of the above was successful at encouraging the addition of ESI protocols, well then, first of all – ouch, and second of all – allow me to offer a few final cautionary tales.
Imagine your firm completes discovery on a case without deciding whether email attachments, signature links, or Twitter profiles are relevant disclosures among a discovery production. You will likely end up with several hundred pages of bates-stamped documentation that is entirely unresponsive to your requests. Is this the end of the world? No. However, in this made-up scenario you will wish you had just prepared your external ESI protocol to say “exclude any irrelevant or non-responsive links within production.”
The case of Entergy Gulf States Louisiana LLC v. Louisiana Generating LLC provides an illustration of what may occur when parties are unwilling to undergo the ESI protocol negotiation process in good faith. One party in this case submitted standalone search terms such as “confidential” and “inspect,” leaving out any boolean operators that would ensure all documents containing either term would be included in the review. This resulted in the judge issuing quite the dressing-down of this firm in their ruling.
The lesson from this opinion? ESI protocols are only as useful as you make them. Simply having the protocol does not make for sunshine and roses; attorneys must actively follow through with the agreed upon protocol, engage in good faith, and be mindful in order to properly follow the nuanced operation.
Bottom Line: ESI Protocols Are Essential
Essentially, ESI protocols reduce the need for litigation in discovery. If inner-office groups and parties in a case can agree beforehand on the relevance of time range, documentation, and devices, they will, in turn, save valuable time and spare many headaches.
