The following is Part I in a multi-part series on how to draft and leverage an ESI protocol in any litigation. In conjunction with this series, eDiscovery Assistant has created a new section in Checklists and Forms titled ESI Protocols that will include new content with each part of this series.
An ESI protocol is your roadmap to handling ESI issues in any litigation. Like any trip you take, the more planning you do, the less speed bumps you hit. In litigation, those speed bumps can include expensive and time consuming motion practice, failure to capture key evidence, waiving privilege on inadvertently produced materials, not being able to search data effectively, and not being able to understand the timeline or relationships of the data, among others. On average, we go back to the ESI protocol between 30-50 times in any litigation. Civil litigation is won and lost on the documents, and the ESI protocol is THE agreement that defines what documents you get and how.
So how and when do you plan for an ESI protocol?
The when is simple: from the minute you start talking about a case. Whoever you have that knows ESI, include them in your initial conversations about the case. You should know many of the answers to the questions raised below right away, and when a user has the ability to delete evidence with a simple click, dropping of a phone, or a system can be auto-deleting data, time is of the essence.
How? That’s specific to each case and why you need to start right away. Having drafted more than a hundred ESI protocols, there is a very important caveat: You will NOT be able to plan for everything. There will always be unforeseen sources of ESI, unique preservation issues, or some issue that you didn’t contemplate and plan for upfront. And that means it’s critical to have 1) a well articulated protocol that tells the court how much you thought about and planned for ESI related issues and 2) a protocol that includes the requirements for proportionality and meet and confer obligations clearly.
Let’s dive into the How. But before we do, I’m going to answer a question I get at least 3x a week — I don’t really need a protocol in every case or for small cases, do I? And the answer is: Do you feel lucky? You can absolutely simplify a protocol for a smaller case in state court, but going without raises all the risks noted above, and smaller cases usually don’t have the budget to handle those risks. So why take them? I’m not suggesting that you have to recreate a brand new protocol for every case — I want you to create a template that addresses the issues you see in every case, and then modify it for new, case specific issues or sources of ESI. We’ve included simpler protocols in the ESI protocol section for use in smaller matters. Please note, though, that a sample protocol is just a sample — using one without tailoring it to your case may have malpractice-like results.
I’ve identified the main points to planning below. Note that they evolve as your case evolves. Think of these items not as a list to follow, but as points to consider as part of a full picture of what you need to include in your protocol to protect what you need in discovery and how you want to provide it:
- Plan and draft your ESI protocol as if you are going all the way through trial and showing electronic evidence to a jury. That is NOT the same as fully executing on discovery when you know the client’s goal is to resolve the case early or your likelihood of success is high to win on a motion. Planning and executing are two different things. What does it mean to plan for trial so early? Social media evidence is a good example, and we are seeing it as a source of ESI in every type of case. You find great evidence on Twitter, Facebook, Instagram, etc. How will you capture it? If you screenshot it, where is the metadata for the post? Who will authenticate that post at trial? What other evidentiary objections are you likely to face? Each one of those issues has to be considered for every source of ESI you have in a case, and it requires careful planning and a protocol that gets you what you need from the other side. Planning for trial means thinking about admissibility of the evidence, how you will present it, which witness will testify about it and what form it will take. If you don’t get the information in a form that you can use effectively, you will find yourself either 1) spending a lot of time and money to recreate it in a format you can use, or 2) not getting the full effect of the evidence at trial. Going back to the social media example, if the opposing party produces a Facebook profile to you that the user downloaded, all of the component parts — images, comments, posts, etc. — are taken apart and produced to you separately. That’s how Facebook makes the data available. They do not appear they way they look on Facebook and you will not be able to re-create them. You need to capture the profile to show a jury they way they are used to seeing Facebook using an ediscovery specific tool. If you can’t that from the other side, you have to get it.
- Next, understand the full scope of evidence that you will want to present on each element of each theory of liability, potential affirmative defenses or counterclaims. I’m talking about starting with the jury instructions for your case. You want to map out the story you want to tell to a jury and use that map to guide your requests for documents (i.e. ESI) AND then plan for each type of data you will receive in your protocol. We will get more into the specifics on planning for individual sources in future posts, but this now needs to be a part of your trial strategy. Who can say that the light was red at 10:01pm in the southbound direction when the cars collided? How do I want to show that to the jury? How will I lay the foundation for that evidence? All too often, eDiscovery starts by either 1) sending very broad discovery requests or 2) identifying custodians and responding to individual RFPs. There’s very little thought to why you are doing what you are doing, and then you get mired in discovery and lose that big picture focus. If you define the focus early, you can keep going back to it when the other side requests new data, or you want to make sure you’ve produced everything you need for your case. Clearly, both sending RFP’s and responding have to be done, but planning for the case you want to present and crafting discovery for that process is a much more cost effective and efficient process.
- Determine the picture you want to create for a jury. I talked about this above, and it’s key. What is the picture you want to create for a fact finder in your case and what ESI do you need to do it? For example, in an action for selling user’s data collected from their online activities, the ESI would be completely out of the box, requiring data from databases that has to be combined into a profile for a user to show a judge how a user’s data was sold and the path it took. How will you recreate that picture in your case? In an embezzlement case, you want to create a timeline derived list of all the data and sources taken and where they went. That’s piecing together data from multiple places. The more native form you have it in, the more you can do with it using technology.
- Identify the discovery issues that you see in the case. Are there preservation considerations on one or both sides? How far back does the date range for preservation go such that you need to consider the availability of data? Will the other side fight you on getting text messages? List out the issues and address them at the meet and confer.
- Think through how you envision the discovery process playing out and how you’ll plan for it via the protocol. As a plaintiff, can you effectively evaluate search terms and is that the route to go in identifying responsive data? How cooperative is opposing counsel on ESI issues? How will data get identified for review and production? What kind of volumes of data are at issue in the case and what are your resources and budget to review that information? If they are small, technology that allows you to leverage fewer people resources may be important.
- Understand the custodians and data sources you need to account for and what data you want in discovery. ESI is all over the map in terms of how users create, send, receive and maintain it, and then you have to account for how the systems they use maintain data. What kinds of data do you want? What form does that data take? Most lawyers who draft ESI protocols know how to handle email and attachments, but what about social media discussed above? How do you deal with email threading and what metadata fields do you want? Do you know how much you can learn from metadata? What about images, mobile devices (Android v. Apple devices), instant messaging (iMessage, WhatsApp, Yammer, etc.)? In this step, you need to identify each source of data you may want or need, and plan for how you want to receive the data so you can leverage it effectively.
- Identify the date range for preservation of data. This date range, coupled with the availability of data in #2 will focus you in on either what needs to be done quickly to ensure data isn’t lost, or if data is already gone, whether there are any options available to recover it or fight about it. You need to meet and confer about how far back data is available, and you may need to do some investigation. Start paying attention to the types of data you use in your cases and how long they are available. Bank records? Usually 7 years online. That’s just one example to get you thinking. Identifying these issues early can save time and money, and needs to be factored into the evaluation of the likelihood of success on a matter.
- Understand the technology that you will use to collect, review and produce the data and what the other side wants. FRCP 34 allows the requesting party to ask for format, and if there is no request, you can provide any reasonable format. We aren’t yet at a place, unfortunately, where we are providing native data, so format is important. (Yes, I know many of you are still exchanging non-searchable pdfs and we’ll address that in another Part of this series. For now, I’ll just say this: You are doing yourself and your client a disservice, but I do understand it’s about lack of knowledge how to do something better, or fear of cost.) In addition to format, you want to consider how the technology you have will cope with the data you want, need or have to provide. Do you have the ability to run analytics, email threading, filter on the fly? What do you need to be able to do with the data you receive? Because when it comes to the protocol, you want to get the right format for specific types of data and you have to consider how your tech requires it. We’ll get into technology in detail in another part of this series.
The planning part of the ESI protocol is critical to ensuring the issues your client needs for the case are captured in the language of the Agreement. Courts hold parties to what they agree in an ESI protocol. Going forward, we’ll talk about examples of how parties gave up rights to contest certain issues based on the protocol. Don’t enter into one blindly — consider what you really need. ESI isn’t going away and you’ve got to get up to speed or find someone who is to help if you need to.
In Part II of this series, we’ll cover the key concepts to include in an ESI protocol and then start diving into each one to discuss the considerations and how the courts are interpreting the language of protocols.