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interviews, and ascertaining a comprehensive
understanding of the client's systems, equips legal
teams to identify hyperlink issues early, reduce
downstream disputes, and align discovery efforts with
both legal obligations and practical limitations. The
ESI protocol is a tool to establish clear and mutually
agreeable standards for the identification, collection,
preservation, review, and production of documents. As
data has evolved, so has the approach to negotiating
ESI protocols.
Start with technical competence.
The complexity of modern data requires attorneys to
possess, or collaborate with counsel who possesses, an
understanding of potential risks and proven strategies
to navigate discovery requests for their clients
effectively. (Model R. Prof Conduct 1.1, Comment 8
(www.americanbar.org)) Lawyers with technical
literacy in complex or ephemeral forms of data,
including collaborative platform content, hyperlinks,
cloud storage systems, and metadata, are better
prepared to identify and address potential risks to
their clients in the negotiation of ESI protocols and the
development of preservation strategies. Lawyers who
collaborate with custodians and IT professionals to ask
critical questions during early case assessment are
then best positioned to explain the burdens associated
with the identification, review, and production of
hyperlinked files based on their clients' systems and
scope of use. They are also more persuasive in meet-
and-confer negotiations and arguing for proportionality
before the court.
Custodial interviews
Before an ESI protocol is negotiated, or even considered,
custodial interviews should be conducted. Custodial
interviews help you to understand the client's systems
and how those systems are being utilized. One best
practice is to include questions related to the use of
hyperlinks in custodial interviews and coordinate with
the client's IT department to understand the licensing
structure applicable to the custodians, thereby
understanding potential impacts on collections.
Understanding the current state of your client's
technical capabilities related to linked content is
critical to assessing your position when negotiating
the ESI protocol. In some cases, certain types of linked
data may only be retrievable under specific system
configurations or access levels. If these conditions are
not met, it is essential to communicate any limitations
to the requesting party clearly.
Further, different systems have varying capabilities for
collecting contemporaneous versions of hyperlinked
documents. Often, only the current version of a
hyperlinked document is available for collection. The
limitation of collecting only the current version of a
document hyperlinked to an email can create problems.
Understanding the current
state of your client's technical
capabilities related to linked
content is critical to assessing
your position when negotiating
the ESI protocol.
