Under Federal Rule of Civil Procedure 26(f) and some state court rules like Colorado’s CAPP Rule 6.1, litigants are required to meet and confer early in a case to craft a discovery plan and discuss preservation and production of electronically stored information, or, ESI. Often, as a result of these meet and confer efforts, the parties draft formal, written e-discovery or ESI protocols (sometimes also called “ESI agreements”). The ESI protocol is often entered by the judge as a formal order and controls the conduct of electronic discovery in the case.
For those unfamiliar with e-discovery concepts, negotiating an ESI protocol with opposing counsel may seem daunting. However, in the end, nearly every protocol addresses some combination of the same issues and topics: 1) the scope the ESI collection efforts; 2) the format in which electronic documents will ultimately be produced; 3) the handling of privileged information; and 4) miscellaneous items such as designation of an e-discovery liaison and meet and confer issues.
When negotiating an ESI protocol, the following list, while not exhaustive, contains items to consider including, or at a minimum, provides topics for discussion with opposing counsel.
SCOPE OF ESI COLLECTION AND SEARCH
- Will the ESI protocol contain list of locations that will be searched for relevant documents and ESI (for example, a list identifying specific computer networks, servers, and local hard drives)?
- Will the protocol include a list of persons (“custodians”) likely to possess relevant documents and ESI?
- Will the ESI collected be limited by date (for example, from 2014 to 2016)? If so, consider including language making clear that date limitations do not prevent the parties from contending that relevant evidence arose outside of the agreed upon time frame.
- What methods will the parties use to collect ESI? Will search terms be used, or will the parties take advantage of predictive coding or computer assisted review? If search terms are used, what are they? Does the producing party have an obligation to use search terms beyond the agreed upon terms if it is reasonably believed use of the additional terms will lead to the discovery of additional relevant documents? In a similar vein, should the protocol contain a mechanism to add additional search terms if additional information is learned warranting additional searches?
- Is there agreement on what documents are “not reasonably accessible” under Federal Rule of Civil Procedure 26 and therefore not subject to discovery? (For instance automatic back up files or information contained on old back up tapes). If an agreement is reached on ESI that is not reasonably accessible, consider preserving the parties’ rights to argue that the information is, in fact, accessible if circumstances warrant later in the case.
- Should the order include guidelines addressing proportionality and cooperation?
FORMAT OF PRODUCTION
- In what format will ESI be produced? TIFF with text files or in native (original) format? Are load files necessary? How will the parties handle color documents?
- Should e-mail messages and attachments be numbered consecutively and produced together (sometimes referred to as parent-child relationships)?
- Will metadata (internal data about the ESI such as creation date, author, recipient and the like) be produced and, if so, what categories of metadata will be produced?
- Must electronic versions of hard copy documents be created?
- Are rolling productions permissible?
- How will the production of privileged material be handled? Do the parties have a “clawback” agreement (an agreement to return inadvertently produced privileged information) under Federal Rule of Evidence 502(e) or a state counterpart?
- What is to be included on privilege logs? Should communications from trial counsel be excluded?
- Will the parties designate e-discovery liaisons as points of contact to communicate with the court and other litigants about e-discovery issues? Some courts, like the United States District Court for the Northern District of California and those within the Seventh Circuit Court of Appeals, encourage parties to designate e-discovery liaisons.
- If necessary, how will the ESI protocol be amended, and are there any specific topics or issues that require further meet and confer sessions?
- Should the protocol contain a provision stating that nothing in the agreement prevents the parties from challenging the admissibility of information produced under the protocol or otherwise objecting to its production or use at trial?
- Does the ESI protocol also govern ESI produced by third parties pursuant to subpoena under Federal Rule of Civil Procedure 45 or other state rule?
As noted, this is not an exhaustive list but provides a good starting point to prepare for ESI protocol negotiations. Percipient provides an end-to-end managed document review services and included in those services is advice and consultation regarding matters relevant to ESI protocols. We are also available to participate in pre-discovery meet and confer conferences and are prepared to act as a point of contact with litigation opponents regarding e-discovery issues.