Digital White Papers

I L T A W H I T E P A P E R | L I T I G A T I O N A N D P R A C T I C E S U P P O R T 4 D E L V I N G I N T O E D I S C O V E R Y : T H E B E N E F I T S O F A N E S I P R O T O C O L that you'll refer back to over and over. There are many advantages to having an ESI protocol in your case, no matter the size: It makes you think through discovery for the entire matter. Historically, litigators have flown by the seat of their pants with discovery -- sending, receiving and responding to discovery requests that sound like big buckets of what they want, but without thinking about the insane volumes of data they will receive in response, or how expensive it will be for the other party to provide. Volumes of data, the costs to go through it all, and the time to get from the big bucket down to what you actually need for a case make that approach outdated and impossible. You spend too much time and money looking at the huge volume of unnecessary information to find the needle in a haystack, instead of being able to focus on the key documents in a case. A well thought through, targeted approach can circumvent sunk time and costs. Consider what you really need and how you could use existing technolo to get to it. Even for small matters the investment is well worth it. Because a protocol requires you to set out the form for each type of data you will provide, you have to identify and find what you will need for a case, whether that is the more standard email and documents, or more complicated ESI like Slack, WhatsApp or social media profiles or posts. 1 A well-drafted protocol will protect your client's data and interests. Most clients have no idea how much detail goes into ensuring that no privileged or otherwise key business information accidentally gets out between collection, review and production. But if it does, and the volumes of data make it a much more likely occurrence than with paper, protection against inadvertent waiver via FRE 502(d) or state equivalent is one way of protecting your client's data and a must have for a protocol. A protocol also presents other opportunities to limit preservation, scope of collection, sources of data, and other ways to reign in your client's obligations and, simultaneously, costs. The strate on whether it makes sense to include some or all of those limits is different for every single case, but thinking about them is a key part of the process of planning. It can also help identify costs and a budget. You will identify sources of data that require additional consideration and planning to collect from and produce data. As I mentioned above, not everything is email anymore, and more and more, we see new sources of data that require thought and planning as to how to collect from them and how content will be produced. Those can include project management tools, bank data, social media, slack, CRM systems, procurement, video, mobile devices, databases, etc. Thinking about these early lets you identify cost effective 2 3 solutions for how to handle them. How will you introduce this data at trial? Is it a civil litigation or a government investigation? One can require forensic collection where the other does not. Sometimes just providing read only access is the best way -- other times detailed production specs are required for a source of data. This is another area where cooperation with the other side will save time and money. This area is also where you will need to spend time learning about the sources, how data comes out, how to go and get it, and whether you can produce it in a specific format. That takes time and knowledge, and you will need to start early. Waiting a few months to a year can mean the difference between preservation and spoliation when routine data is deleted after your duty to preserve is in place. Even the new Rule 37(e) might not be so forgiving. You can leverage the protocol for third-party data. Many cases involve data from third parties. Attaching the ESI protocol for the case to third party subpoenas (you need to include language in the protocol that says it applies to them) is a way to ensure you get the best format of data for searching and reviewing from those responses. Consistency in format across parties allows for better searching and faster review of third party data. That is very helpful when it 1) takes months to get the data in the first place or 2) there are sources of data that a third party is less likely to 4

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