ESI Discovery Protocol - What To Include

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. eDiscovery-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 Discovery 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 bring in more data as your understanding of the data corpus changes. As you prepare 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 that you should expect to accomplish in your ESI protocol.

ESI Discovery 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, and 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 the privilege to be upheld in the case that a privileged document is produced inadvertently.
• Privilege Issues - Privilege log specifications, 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

Conclusion

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 info@digitalwarroom.com or schedule a demo on our calendar.

Frequently Asked Questions

1. What is the purpose of an ESI protocol in litigation?

An ESI protocol ensures that all relevant electronic documents are identified, preserved, and produced efficiently and in compliance with legal requirements. It establishes the rules for handling electronic evidence in a dispute.

2. How do I negotiate an ESI protocol?

Negotiating an ESI protocol typically occurs during the FRCP 26(f) conference. You must define the scope of the investigation, list the custodians, and agree on search terms, data formats, and production methods.

3. What are common challenges in eDiscovery?

Common challenges include handling large volumes of data, ensuring the preservation of electronically stored information, managing privileged documents, and determining the best method of production.

4. Why is early case assessment important in eDiscovery?

Early case assessment helps identify key data, anticipate issues, and ensure that the eDiscovery process remains efficient throughout litigation.

5. How can an eDiscovery vendor help with the protocol?

An eDiscovery vendor can assist by providing tools for data collection, processing, and review, while also ensuring that your production complies with legal and technical requirements.