By Vinny Liu
Picture yourself at the beginning of a high-stakes litigation case. Your team then drops the bomb: You’ve got to dig through colossal heaps of digital information to get things ready for discovery. Adding insult to injury, if your review team isn’t top-notch, the cost of reviewing these docs can bulldoze your budget.
Without a proper framework in place to review and produce your data, this task could turn into a never-ending nightmare.
But fear not!
The solution is an Electronically Stored Information (ESI) protocol. It’s a set of guidelines and procedures that can help streamline the process, making it easier to locate, review, and produce the necessary information. In other words, it’s like having a trusty GPS that guides you through the maze of electronic data.
This piece will show you the steps in the process, and provide guidance on how to create or fine-tune a protocol.
The Rise of Data
Due to the increases in technology and data types, electronically stored information continues to grow at rapid rates, with the average company in 2021 using more than 100 applications to complete work. What’s more alarming: Most of these apps aren’t provided by the company’s IT department.
ESI encompasses just about any digital data – emails, documents, spreadsheets, databases, application data, smart device data, and social media posts – that could potentially be used as evidence in a legal case. As more and more tech products are created, so too increases the amount and types of data. In addition, the COVID-19 pandemic only added to the data boom, with more people working from home than ever before. And experts predict these arrangements aren’t fading anytime soon, ensuring digital data will continue to rise into the future. And bear in mind that IT doesn’t provide these technologies.
The IT departments’ weakening grip on employees’ data usage and storage is cause for alarm. Understanding where your data is and how to get to it is crucial in the context of eDiscovery, both in investigations and litigation. But that’s only the first step. Collecting, reviewing, and producing large amounts of data can be both time-consuming and costly.
ESI Protocol in Action
An ESI protocol is simply a set of negotiated rules and best practices designed to ensure the efficient and accurate handling of electronic information during the discovery process, when parties exchange relevant data in litigation or investigation. Not only can an ESI protocol strengthen your data management game, it also can benefit each step in the discovery process, preventing eDiscovery missteps and related sanctions, and leading to a better, more efficient review and production:
1) Preparation: When considering the ESI protocol’s scope, a crucial first step is to interview IT personnel and data custodians to understand the types of data and sources at play. This will help make sure no data is missed and can also help craft the definitional section of your ESI protocol. Preparing with the protocol in mind at the outset requires you to view the case as a whole. If you do work on the front end of developing an all-encompassing protocol, you’ll have thought through all data types and sources, ensuring a well-rounded view of the entire matter.
Further, an ESI protocol can be flexible enough to accommodate different approaches for different situations. Parties involved can tailor the process based on the unique needs of their case. This adaptability ensures that the ESI protocol can be effectively applied across a wide range of legal matters, making it an invaluable asset.
2) Preservation: Perhaps the most common discovery mistake: erased or “spoiled” evidence. Unfortunately, these types of mistakes are a surefire way to be slapped with discovery sanctions. An ESI protocol emphasizes the need to preserve relevant digital data to prevent accidental deletion or modification. This area is ripe with mistakes and can lead to costly fines and sanctions. A well-drafted protocol ensures that no crucial evidence slips through the cracks.
3) Collection: Once the data is preserved, the ESI protocol lays out procedures for collecting the information in a forensically sound manner. This guarantees that the data remains authentic and admissible in court.
With the rise of new collaboration tools like Slack and communication tools like WhatsApp, employees are often communicating with each other through channels unknown to IT. If that data is determined to be relevant in a lawsuit, arguing that you didn’t know where it was or how to cull it for production has proven to be a non-starter with judges. See WeRide Corp. v. Huang, No. 5:18-CV-07233-EJD (N.D. Cal. Apr. 24, 2020).
4) Processing: Often large datasets need to be filtered or organized to make them more manageable. An ESI protocol provides guidelines for processing data, allowing for efficient analysis and review. It’s like having a super-smart assistant who says, “First, let’s filter out the stuff you don’t need. Then, let’s organize what’s left, so you’re not swimming in chaos.”
Issues here include whether files must be converted to searchable documents and whether deduplication will be used. Pay special attention to the file types, as courts have rejected screenshots and other types of processed documents when native files were requested.
5) Review: This step involves reviewing the collected data for relevance, privilege and confidentiality. Often, parties will use an ESI protocol to define search terms for review and determine whether or not Technology Assisted Review methods (TAR) will be used. By harnessing the power of artificial intelligence and machine learning, TAR significantly accelerates the process of sifting through mountains of digital information.
But draft protocols with caution: TAR is a hot topic among both attorneys and judges. Include too much information and you may box yourself into a very narrow review. Too much information, and you risk providing material that is irrelevant. In any event, these considerations need to be top of mind when creating your protocol.
6) Production: Although many lawyers are familiar with exporting documents to PDFs, fewer know the best way to produce unfamiliar file types, like Slack data. As above, it’s imperative to understand the technology behind the data to ensure that you are considering native file types and metadata for each file type.
For example, a poorly drafted protocol may lead to the accidental production of confidential/privileged information in native files, like hidden columns and rows in Excel, speaker notes in PowerPoint presentations, and tracked changes in Microsoft Word.
Developing a Protocol
Crafting an ESI protocol can be a daunting task. But a smart ESI protocol isn’t just about making the discovery process smoother; it’s about being upfront and fair in the legal system and protecting your client’s data along the way. Here are a few tips when you start creating your protocol:
• Don’t reinvent the wheel. Has your company created a protocol for a similar case? Although it’s true that ESI protocols often vary by case type, starting with something over nothing will still be a big help. If you have had successful productions in the past, look at what you produced: were files in their native format? Were there any issues viewing files? How was metadata handled?
No dice? Check local court websites. Many courts have created model orders and guides to help parties with their efforts.
Nothing on point? Follow this checklist to create a standard template to be tweaked for each unique case. Even so, be sure to remove any boilerplate language that may conflict with your case’s needs.
• Remember confidential or proprietary information. For the people in the back: ESI protocols should always include provisions relating to this type of information, including “clawback” provisions for inadvertently disclosed information, as well as how parties should identify confidential and privileged information.
A well-drafted protocol will protect your client’s confidential information, preventing inadvertent disclosure. It’s not just prudent; it’s required. Many states’ ethics rules require that lawyers be competent and knowledgeable about technology and that they safeguard client’s privileged and confidential information. Further, federal rules state that parties should obtain an order stating that accidental production doesn’t waive protections for those documents. (In fact, some judges have stated that failure to include these provisions borders on malpractice).
That’s why Alex Jones’ attorney accidentally sharing the entire contents of his client’s phone during Jones’ defamation case (and then failing to claw the data back) was particularly stunning, leading to the lawyer’s six-month suspension. Don’t be that guy.
• Consider having your protocol adopted by the court. Asking the court to enter an order approving your protocol may be a good strategy. First, it provides consequences with teeth: Violating an agreement between the parties is one thing, but violating a court order is much worse. Also, requesting a ruling on a protocol at the beginning of the case may prevent avoidable discovery disputes down the line. Further, third parties being subpoenaed for records may feel the order holds more weight than just an agreement between parties.
• Don’t make an agreement you can’t keep. If you say you can produce data, you better make it happen. This goes for data type as well: If you promise to provide metadata, do so. Courts tend to enforce ESI protocols the parties themselves negotiate.
• Keep your protocol current. Data types and sources are constantly changing. Be sure to review your protocols to make sure they cover all your organization’s data.
Having an ESI protocol in place is an absolute game-changer during litigation. In an era where information is king, mastering the art of ESI protocols is no longer a luxury but a necessity. A well-drafted ESI protocol can serve as your digital compass when the time comes to produce the relevant information within a sea of data.
Need help managing your data? Level Legal has you covered. Contact us today to get started.
Vinny Liu is a senior project manager at Level Legal. With an eDiscovery track record spanning more than two decades, he delivers delight for law firms and corporations.