So you’re sitting on a ton of data and you remember we told you to confirm with the other side what you’re reviewing to avoid problems down the road. But, what does that agreement look like and what does it need to contain? There are five easy questions to ask yourself, and the other side, to get to the right result.
The “right result” is commonly known as an ESI protocol. This relatively straightforward document sets out the expectations for both sides and is binding on the parties. Depending on the needs of your case, it can be a letter agreement, part of your Rule 26(f) case management plan or a stipulation filed with the court. Any deviation from this written agreement, whether it’s to make the search more or less inclusive, requires mutual assent. It should answer the usual five questions: who, what, when, where and how?
Zealous advocacy during negotiations of the ESI protocol can be invaluable in reducing the scope and cost of discovery. While limiting your obligations should be a big focus, remember that you also have to obtain the documents you need from the other side. Asking the right questions and pursuing all the leads will ensure that their production to you is complete and comprehensive.
1. Who? The first question is: who has relevant documents? Invariably, one side wants a broad search of the files of every person who was even tangentially involved in the dispute, and the other side wants to focus on the key players. Remember that a commitment to review one additional custodian’s data is a commitment to spend time and money. It is not uncommon for your employees to have 10 gigabytes or more of data in their email inboxes alone. Therefore, limiting the number of people whose data must be collected and reviewed can be the single biggest cost savings in e-discovery.
Don’t forget shared data sources, such as networked servers, accounting systems and other platforms unique to your business. These sources may not map to a particular custodian, but if they contain relevant data, you have an affirmative obligation to produce it. On the flip side, you will want to make sure that their production to you includes these sources.
2. What? As in, what are the relevant materials? At its most basic, you need to ask whether the other side requires email, electronic documents or paper documents. A paper collection is intrusive, time consuming and requires scanning vendors. Electronic data can be collected fairly quickly and with minimal intrusion to the custodian. At this point, it is also important to establish that you only intend to produce reasonably accessible data. Likewise, if you need deleted documents, fragments in unallocated and slack space, offline storage systems, legacy systems and the like, you will need to get the other side to commit to this in advance.
After you’ve established the sources, you need to talk about the search terms you will be applying to the data. Search terms assist you in reducing the review set by focusing on documents that relate to the subject matter of the dispute. Just because a document contains a search term does not make it responsive—false hits are common. Remember to run the proposed terms and sample the results before you agree to them so you know what you are committing yourself to.
3. When? Defining the relevant time period is essential to narrowing the documents to be reviewed and produced. Date restrictions are objective and easy to apply to electronic data. Paper documents present different challenges in this regard, but if you can exclude entire warehouses of paper documents by examining the dates recorded on the outside of the box, it will be well worth the effort.
Knowing the relevant time period informs negotiations about what data is still available to be reviewed and produced. If potentially responsive documents only exist on backup tapes and other disaster recovery systems, you will need to be prepared to discuss with the other side the burdens—or if you are the requesting party, the benefits—associated with restoring that data.
If any data has been destroyed because it was purged pursuant to a document retention policy, you will have to justify the reasonableness of your policy, your adherence to it and when your preservation obligations were triggered.
4. Where? The Federal Rules require you to produce everything in your possession, custody or control. However, these lines are often unclear. Will the other side expect you to produce data from a custodian’s PDA, personal email, home computer, instant messages or social media accounts? If relevant documents are in the possession of a third party, how will you address that? Data stored in the cloud is likely to be considered in your control, even if it is not in your possession, and you should work out a protocol for how it will be addressed.
Wholly or partially-owned domestic or foreign subsidiaries and affiliates may be in possession of relevant data. You would be wise to anticipate questions regarding what data is considered in your custody or control. You should also consult with data privacy experts who are knowledgeable about the foreign jurisdictions at issue. Violations of some foreign data privacy laws carry criminal penalties.
5. How? The previous questions focused on the sources of data, methods for culling the data and issues with obtaining it. The last question focuses on manner of producing it to the other side, the final step in the process. Reaching an agreement on how you will provide documents can avoid the most tedious discovery disputes. An agreement on how native files will be handled and the types of metadata you will produce can avoid annoying disagreements over format of production. Fortunately, standards have emerged in recent years as to how documents should be produced, and adherence to these standards is increasing.
Narrowing the issues
Even if you and the other side cannot agree on every single point and subpoint, going through the exercise of negotiating these items will benefit you in the long term. You will narrow the issues in dispute and be able to coherently present the topics on which you cannot agree. Further, you will be able to convey to the court reasonable attempts to resolve them and demonstrate that you have reached a consensus on many items. Your protocol can reflect the areas of disagreement, without automatically resulting in motions.
Remember that discovery is a marathon, not a sprint: The process frequently occurs in stages, and you can reserve your right to request the production of additional custodians’ documents if your review of the first tier custodians’ materials indicates that additional documents are warranted.