Understanding and Formulating an ESI Protocol
In the rapidly evolving landscape of legal discovery, the management of electronically stored information (ESI) has become a critical aspect of the electronic discovery, or ediscovery, process. ESI encompasses all forms of data created, stored, and used in digital form, ranging from emails and documents to databases and social media content. The sheer volume and complexity of ESI necessitates a structured approach to ensure efficient and effective discovery.
This is where ESI protocols come into play.
What is an ESI Protocol?
An ESI protocol is a mutually agreed-upon set of guidelines that outline how electronic data should be preserved, collected, processed, reviewed, and produced during litigation. It serves as a roadmap for both parties, reducing ambiguity and minimizing the risk of disputes related to discovery issues, and can sometimes be entered into as a court order.
The protocol addresses key issues such as the scope of discovery, data formats, handling of privileged information, and methods for resolving conflicts. By establishing clear expectations and procedures, an ESI protocol helps streamline the discovery process, saving time and costs while ensuring compliance with legal and regulatory requirements.
Essential Guidelines
Creating an effective ESI protocol requires careful planning and consideration of various factors. Here are some essential guidelines to help you develop a robust ESI protocol.
Scope and Relevance
The scope and relevance of the ESI protocol define the types of ESI that are relevant to your case. This includes defining the date ranges and custodians to ensure such information outside of the parameters isn’t included.
Additionally, defining the specific data sources you want to gather information from, such as email servers, cloud storage, or mobile devices, will help you further identify relevant information.
Preservation
Preservation involves implementing a legal hold to prevent the destruction or alteration of relevant ESI. It’s important to outline procedures for preserving data in its original format so all parties are aware of what needs to be done, and to ensure all custodians are informed and trained on preservation obligations.
Collection
Develop a plan for collecting ESI from the identified sources. Be sure to use defensible collection methods to maintain data integrity, and document the collection process, including chain of custody records.
Processing
Establish protocols for processing ESI in an effort to reduce data volumes and the cost to produce it. This means having procedures that include de-duplication, deNISTing, and email threading. Additionally, convert data into reviewable formats to ensure metadata fields preservation, and utilize keyword searches and advanced analytics to identify relevant information.
Review
Implement a systematic document review process that includes prioritizing key documents and using technology-assisted review (TAR) tools to enhance efficiency. It’s also important to establish guidelines for privilege review and redaction.
Production
All parties need to agree on the form of production for the ESI, whether native files, TIFF, PDF, or another file format. Additionally, ensure productions are Bates-stamped so they’re easy to find and load files are included.
You should also provide privilege logs as needed to protect attorney-client communications and detail any confidential legal work product or withheld documents.
Confidentiality and Security
Confidentiality and security are key to protecting sensitive information. It’s vital to use secure methods for data transfer and storage, and to include language that addresses confidentiality agreements and protective orders.
Dispute Resolution
Outline procedures for resolving disputes related to ESI, and consider appointing a third-party expert if necessary to ensure you’re in compliance with the guidelines. Establishing a time frame for raising and addressing issues will ensure you stay on schedule.
Best Practices
Adopting best practices in the development and implementation of ESI protocols can significantly enhance the effectiveness of the discovery process. Here are some key best practices to consider.
Educate and Prepare
Education and preparation are key to establishing ESI protocols. Know what you’re offering and what you’re prepared to accept before initiating the meet-and-confer process. Interview the key custodians involved, research the subject matter, prepare a list of people you think should produce data and be witness, as well as the people who should not be involved in the case. This is your biggest and best opportunity to manage the cost and scope of discovery.
You should also know what you're requesting and what the other side is offering. In most disputes, parties have differing volumes and types of data, and different dispute or transaction timelines. Understand what you need from the opposing party in discovery and in what form(s) you need it.
Engage Early and Collaboratively
Early good faith engagement between parties is crucial in setting the tone for cooperation and transparency. Schedule a meet-and-confer session as soon as possible to discuss ESI issues and reach agreements on methodology. Collaboration at this stage can help identify potential challenges and address them proactively.
Although it is up to the producing party how they want to select, filter, and review ESI prior to production, it is good practice for both parties to share at least some transparency of methods for filtering prior to review, such as search terms.
Leverage Technology
Utilize advanced ediscovery tools and technologies to streamline the management of ESI. TAR, predictive coding, and data analytics can greatly enhance the efficiency and accuracy of the review process. These tools help prioritize relevant documents, identify patterns, convert from a native format if necessary, and reduce the overall volume of data to be reviewed.
Maintain Flexibility
While it’s essential to establish clear guidelines, maintaining flexibility on behalf of both the producing party and requesting party is equally important. The dynamic nature of ESI means that new data sources or issues may arise during the discovery process.
Ensure your protocol allows for modifications and updates as needed, with mechanisms in place to address unforeseen challenges.
Document Everything
Thorough documentation is key to defensibility in ediscovery. Keep detailed records of all steps taken in the preservation, collection, processing, review, and production of ESI. This includes documenting decisions, communications, and any deviations from the protocol. Comprehensive documentation can be invaluable in defending your process if challenged in court.
Train Your Team
Ensure that all members of your legal team are well-versed in the ESI protocol and their respective roles and responsibilities. Regular training sessions can help keep everyone updated on the latest best practices and technological advancements. A well-informed team is better equipped to handle the complexities of ESI.
Have an Escape Hatch
ESI protocols are established early in a case, when many things are still subject to change and unforeseen issues can arise. Some of these changes may warrant changes to the protocol itself. This means that both parties should have clear language indicating when meet-and-confer should reopen, without any sort of “gotcha” tactics.
Federal Rules to Serve as a Framework
The Federal Rules of Civil Procedure (FRCP) don’t specifically say anything about ESI protocol, however they do provide a useful framework to structure one around. These rules are the most relevant.
Rule 26(f)
Rule 26(f) governs the meet and confer process, which lays the foundation for the ediscovery process and the guidelines both sides will be held accountable for. This is when opposing parties learn what types of evidence the other side has as they prepare for trial.
Rule 34
Rule 34 concerns producing documents, including electronic documents, and ESI for inspection. While this rule doesn’t require the exchange of search terms or agreement surrounding which technology can be used to satisfy a party’s obligations, it’s still relevant to ESI protocol.
Rule 37(e)
Rule 37(e) regards data that is lost because a party failed to take the steps needed to preserve it. An ESI protocol should include something about data preservation so that both sides know the consequences of failing to preserve data and can do what’s needed to avoid it.
Rule 502(d)
Rule 502(d) protects parties that inadvertently produce privileged information during discovery. That privileged information is immediately returned to the producing party with no consequences or sanctions. This is also known as a clawback agreement, and is worthwhile protection to have in an ESI protocol.
How to Draft a Comprehensive ESI Protocol
Drafting an ESI protocol that works for all parties involved requires several key steps, which are outlined below.
Initial Assessment
Conduct an initial assessment to understand the scope of the case and the types of ESI involved.
Identify key custodians and data sources early in the process.
Meet and Confer
Schedule a meet-and-confer session with opposing counsel to discuss ESI issues.
Use this opportunity to negotiate and agree on key methodology, including data formats, preservation measures, and production timelines.
Drafting the Protocol
It’s important to keep in mind that there’s no one-size-fits-all language. Just as every case is different, every ESI protocol will need to be customized to the needs and requirements of the particular case. Avoid reliance on basic template or sample ESI protocols.
Customize the protocol to address the specific needs and complexities of your case.
Include detailed provisions for each stage of the ESI lifecycle: preservation, collection, processing, review, and production format.
Review and Approval
Circulate the draft protocol among all relevant parties for review and feedback.
Incorporate any necessary revisions based on input received.
Seek approval from the court if required.
Implementation and Monitoring
Implement the protocol and ensure all team members are aware of their responsibilities.
Monitor compliance with the protocol throughout the discovery process.
Make adjustments as needed to address any emerging issues or challenges.
Conclusion
An effective ESI protocol is a cornerstone of modern ediscovery practices, providing a clear framework for managing ESI throughout the litigation process. By following established guidelines and best practices, legal teams can navigate the complexities of ESI with greater efficiency and confidence. Early collaboration, leveraging technology, maintaining flexibility, and thorough documentation are critical components of a successful ESI protocol.
ESI protocols are ultimately a tool for predictability in the discovery process. Although there can be many flash points of disputes among parties, and inevitably there will be differences in opinion as to what is feasible or necessary, having open communication can help alleviate those pains.
With careful planning and diligent execution, an ESI protocol can mitigate risks, reduce costs, and ensure a smoother discovery process, ultimately contributing to a more favorable outcome in litigation.
