ESI Protocol Detailed Explanation

An ESI agreement is a negotiated document that spells out how the parties to a lawsuit will handle electronically stored information (ESI). The agreement is designed to prevent surprises and requires that ESI be stored, collected, processed, and produced in a mutually agreed upon, ready-to-use format.

A good ESI protocol is both a manual and a guidance document, standardizing the procedures for storage, collection, handling and production.

Preparation

ESI agreements require that both parties have a certain level of knowledge about the IT systems involved and the types of data they generate. In Cruz v. G-Star , the court held that attorneys have a duty to be familiar with their clients’ IT systems. To gain this knowledge, it is necessary to interview IT personnel and key data custodians. These interviews are often technical and difficult, so in most cases it is necessary to use an e-discovery consultant or a professional familiar with legal technology and e-discovery rules.

The information gathered during these interviews is also the starting point for Rule 26(f) conferences and consultations or similar state procedures. When the parties are prepared, conferences and consultations become an opportunity to learn about the types of evidence the other party has. Having an e-discovery consultant involved in the IT interviews to listen, take notes, and ask questions can be the difference between winning and losing.

It is important to note that many ESI agreements include a definitions section. Do not ignore this section, as some lists of definitions may be over- or under-included and require negotiation. There are currently some ESI agreements circulating that only define the defendant and omit the word "plaintiff." In such cases, the language of the entire agreement is clearly biased in favor of the plaintiff.

Save Range

Preservation is the most important component of eDiscovery. Without preservation, documents can be altered, lost, or even deleted.

Many ESI agreements include preservation clauses, but incorporating such requirements is often complex. An ESI agreement is an agreement between parties that is sometimes signed as a court order or has the same effect. In the Keurig Green Mountain Single-Cup Coffee Antitrust Litigation , Keurig was sanctioned for not complying with the preservation clauses it agreed to in its ESI agreement. Therefore, be careful when signing an agreement and never agree to it lightly. Either perform your obligations or negotiate. After all, ESI agreements were originally created to guide production formats. As the agreements evolved, litigation participants began to include more provisions regarding collection and search, but there was no requirement to do so.

Processing and analysis

The processing phase is when litigation support professionals preserve and extract data from each file and import that data into a data analysis and review platform. Depending on the required format, processing may also include converting emails and other documents into searchable PDF files.

Understanding the production format at this early stage is critical to properly processing the documents. For example, deduplication occurs at this stage, and it is also important to understand whether the documents are deduplicated per custodian or only within a single custodian. Many civil litigants agree to deduplication across all custodians, while many government or internal investigations require the latter. When deduplicating across custodians, it is also important to understand the priority of the custodians, i.e. the first custodian to submit will have all the documents, while subsequent custodians will suppress duplicate documents.

The process also assigns time zones to the times associated with the emails, which may seem insignificant but is particularly important when custodians travel frequently. Foreign-language documents are also identified during this step. When foreign-language documents are anticipated, ESI protocols typically include provisions to preserve the original language and all accompanying metadata.

Structured data or databases may also be discussed here, but this is often very complex and requires all parties to share the capabilities of each system and the type of information it stores. This usually requires the development and exchange of a data dictionary that defines every field in the database.

Search terminology and technology-assisted review

This section needs to be listed separately under headings, but as with preservation, one needs to be careful about what to include in an ESI agreement. If the parties agree on search terms, it is best to formalize that list and include it in the agreement. Similarly, when agreed, a Technology Assisted Review (TAR) protocol should also be included, but if there is no agreement, it may not be necessary to include it or seek court permission.

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