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On This Thanksgiving, I’m Thankful for ESI Protocols

Published on November 21, 2019

Keith Wilson

As a transplant from eDiscovery software to eDiscovery service, Keith brings a deep understanding of automation to eDiscovery process design. He has worked with Fortune 500 and AmLaw 100 clients to gain efficiencies in the redaction process and alternative eDiscovery workflows.

Without ESI Protocols, you can end up with your goose cooked (instead of your turkey). You won’t know what the productions coming to you are going to look like – which can result in unexpected expenses and time. But ESI Protocols also offer other advantages in litigation. As with everything eDiscovery related, investing time in defining an upfront project plan and budget results in better litigation outcomes – and ESI protocols are another arrow in your quiver to help you think strategically about eDiscovery early in the case.

Here are my suggestions for some Do’s and Don’ts for ESI protocols.

Do get specific about the tactical eDiscovery items. Include the format of production in the ESI protocol. We have all had a messy production to us because an ESI protocol wasn’t established. Those situations create an unneeded and contentious back and forth for opposing to fix the productions, or extra work for to make the productions usable which ends up costing the client money. Things to consider in the ESI protocol are: What format the ESI will be produced, TIFF or native? What metadata fields will be produced? Will hard copy documents need to be scanned and OCRed? Are rolling productions possible? What about email threads and families? Agreeing to these things upfront can save time and money down the road

Don’t use boilerplate language. Although it’s a good starting place, all cases are different and require a different upfront strategy. If you aren’t an eDiscovery expert, you should get advice from your eDiscovery expert on the strategy before going to the meet and confer. There are things that they know that you may not be thinking about that could help you cull down the documents more extensively or make review easier and faster.

Don’t get too specific on issues related to litigation strategy. If your ESI protocol has a list of custodians set in stone, and then you find another relevant custodian during review, make sure that you can add that custodian. If you don’t know the data sources for the corporations, don’t include the exact data sources you will be collecting from in the protocol. You could miss out on data from the company’s messaging applications or other important communications – or you could commit yourself to finding and producing expensive, largely irrelevant data.

Don’t include TAR. Most of the time when opposing counsel wants to exclude TAR or wants to know how you are using TAR, it’s because they don’t understand it. Sedona Principal 6 states that the responding parties are best situated to evaluate the procedures, methodologies and technologies appropriate for preserving and producing their own ESI. You don’t want to waste time and energy negotiating on technicalities that you ultimately don’t have an obligation to disclose.

I’m thankful for ESI Protocols because they help create the eDiscovery strategy from the beginning of the case. ESI Protocols could be a powerful tool to help you save you time and money down the road by putting that eDiscovery strategy in place. If you have any questions when creating an ESI Protocol, feel free to reach out. Happy Thanksgiving!

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About Acorn 

Acorn is a legal data consulting firm that specializes in AI and Advanced Analytics for litigation applications, while providing rigorous customer service to the eDiscovery industry. Acorn primarily works with large regional, midsize national and boutique litigation firms. Acorn provides a high-touch, customized litigation support services with a heavy emphasis on seamless communications. For more information, please visit www.acornls.com.