E-discovery: The 5 questions to ask yourself before you negotiate

The who, what, when, where and how of e-discovery

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?

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.

Contributing Author

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Judy Selby

Judy Selby has more than 20 years of experience in large scale first- and third-party complex insurance coverage matters, providing a full range of services...

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Contributing Author

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Brian Esser

Brian Esser, associate at BakerHostetler LLP, focuses his practice on complex and general civil litigation and corporate investigations. He primarily works in the area of...

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