Exchange Protocol Checklist

THE RULES

 Your first consideration needs to be, what do the rules require?

 Disclosures

FRCP 26(a)(1) requires initial disclosure forms (even without pending discovery requests) regarding:

1. the names and contact information of any party who may have knowledge of or access to discoverable information, or evidence that could support or contradict the fundamental claims of a case;
2. catalog of all electronic documents and data that will be used to make our case;
3. a complete breakdown of all damages sought by disclosing parties, including how those figures were determined; and
4. disclosure of any expert testimony.

 Forms of Production

FRCP Rule 34 (b) details the procedure for such requests as follows:

(b) Procedure.

(1) Contents of the Request. The request:

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced.

 FRCP Rule 34 (b) (2) (D) deals with Responses and Objections and states:

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms;  

So before you begin anything make sure what you are doing or what your opponent has done meets the requirements of the rules. This is essential because the protocol eventually becomes entered as a court order. Even though the general principle is that a producing party has the right to decide how it will produce its documents, that principle “is trumped by the requirements in an agreed upon ESI Protocol memorialized in a Court Order.”  If the ESI protocol is violated, “the Court’s task is to decide the relief to be granted, not to do a proportionality analysis under Fed. R. Civ. P. 26(b)(1).” Because “if the Court addressed [defendants’] proportionality argument and ignored the Protocol, it may incentivize parties to skirt the requirements in a Court Order.”

Magistrate Judge Schneider from In re Valsartan, Losartan, & Irbesartan Prod. Liab. Litig., No. CV 19-2875 (RBK/JS), 2020 WL 7054284 (D.N.J. Dec. 2, 2020) 

CHECKLIST

The premier question here is “what do you want to do?” Are you dealing with your documents or a production from opposing counsel? Do you want to review for privilege, a key phrase or term or just general principles? Decide that before you begin.

 Your Documents:

• Has a litigation hold been entered?
  • When?
  • Who is supervising it?
• How many total custodians are at issue?
  • Which custodians are most relevant?
  • Which custodians are duplicative?
• What are the data sources for the most relevant custodians?
  • What format(s) are the original documents in?
  • What format(s) is the production in?
  • Does the production format reduce the usability of the original format?
• What time frame is most critical?
• Can you sample custodian and data source from that time frame to begin?
• How much will it cost to collect each relevant custodial data source?
• How much will it cost to process each relevant custodial data source?
• How much will it cost to review each relevant custodial data source?
• What are potential costs to redact the contemplated custodial data source?
• What is the total cost to produce the relevant custodial sources?
• What is the time frame needed to produce the relevant custodial sources?

 Documents Produced to You

• Has a litigation hold been entered?
  • When?
  • Who is supervising it?
• How many total custodians are at issue?
  • Which custodians are most relevant?
  • Which custodians are duplicative?
  • What custodians have been produced?
• What are the data sources for the most relevant custodians?
  • Which custodial data sources are most relevant?
  • Which custodial data sources are duplicative?
• What format(s) are the documents in?
  • What format(s) is the production in?
  • Does the production format reduce the usability of the original format?
• What time frame is most critical?
  • Can you sample custodian and data source from that time frame to begin?
• How much will it cost to process each relevant custodial data source, if necessary?
• How much will it cost to review each relevant custodial data source?