An Electronically Stored Information (ESI) Protocol is a negotiated agreement between parties in litigation that governs how relevant electronic documents will be identified, preserved, collected, processed, reviewed, and produced to the opposing party. e Discovery related negotiations typically occur during the FRCP 26(f) Meet and Confer Conference of the Parties (or State equivalent). Courts and case law have made clear that these discussions are ongoing and can even occur in a more informal manner via email, etc. Regardless, the negotiated ESI protocol and relevant deadlines (court provided or otherwise) are binding.
The discovery process is dynamic, unpredictable, and doesn't follow a linear pattern. Throughout the early stages of discovery, we generally recommend taking steps towards understanding the data in question. There's no one way to approach your project, and you may even find yourself having to return to earlier stages and brining in more data as your understanding of the data corpus changes. As you prep to negotiate an ESI agreement, committing yourself to early case assessment and analysis will serve as a solid jump off point before entering the 26(f) conference. Some of the nuances of negotiating an ESI agreement will come with experience and time, but don't be surprised to also find case-specific issues (technical or otherwise) that may require unique solutions or workarounds.
Moving forward, keep in mind that all parties have the right to negotiate, not make discovery demands. Here are 9 points which you should expect to accomplish in your ESI protocol.
ESI Protocol - Points to Consider
- Obtain or define an ediscovery data map - You have an obligation to understand your client's data.
- Create a list of custodians - Open up ongoing conversations with each important custodian and try to understand how all the data ties together and consider legal hold strategies to ensure all data is preserved
- Negotiate and confirm scope of investigation - Consider defining responsive search terms & keyword lists tested on real data, responsive date range, relevant topics
- Examine data sources, consider collection methods and try to anticipate other data specific roadblocks (begin with the end in mind)
- Determine and communicate which eDiscovery vendor you plan to use (may stay the same or change case by case)
- Protective order agreement - Including all allowable protective orders. A Rule 502(d) clawback agreement will allow privilege to be upheld in the case that a privileged document is produced inadvertently.
- Privilege Issues - Privilege log speicifications, agree on appropriate cooperative procedure for how to claim privilege & withhold privileged information
- Form of production - Native production, Tiff Image or mixed production. Produce extracted text? Etc. Agreed upon metadata specifications, Load file format
- Determine production delivery method / protocols - hard drive, file share, FTP
Other Internal Factors For Your Discovery Protocol
- Budget and risk tolerance - ediscovery costs, support fees, professional services
- Define internal roles and resources - Document review, privilege review, IT issues, level of vendor support
ESI protocols guide the entire ediscovery process. By knowing your client's data and anticipating challenges, you can set yourself up for a more cooperative and efficient dispute resolution. For assistance with any of the points in this article or to learn more about Digital WarRoom eDiscovery software, contact us at firstname.lastname@example.org or schedule a demo on our calendar.