The ESI protocol is a negotiated document that expressly states how the parties to a litigation should produce electronically stored information (ESI). The ESI protocol assures against surprises and commands that ESI is preserved, collected, processed, and produced in an agreed upon, readily usable format.
A good ESI protocol is both a manual and a guide governing the procedures for preservation, collection, processing, and production.
The ESI protocol requires that both sides have a working knowledge of the IT systems in play and the types of data generated by those systems. In Cruz v. G-Star, Inc., 2019 WL 4805756 (S.D.N.Y. 2019), the Court determined that counsel had a duty to be versed in their client’s IT system. To gain that knowledge, IT personnel and key custodians must be interviewed. These interviews are often technical and tricky to navigate, and most require an e-discovery consultant or someone versed in the nuances of legal technology and the rules that govern electronic discovery.
The information gathered during these interviews is also the starting point for Rule 26(f)—meet and confer—or similar state procedure. When parties are prepared, the “meet and confer” becomes an opportunity to learn about the type of evidence controlled by your adversary. Having that same e-discovery consultant that conducted the IT interviews available to listen, take notes, and ask questions can be the difference between winning and losing.
A quick practical note: many ESI protocols include a section for definitions. Don’t overlook this section because some definition lists can be over- or under-inclusive and require negotiation. There are some ESI protocols currently in circulation that only include a definition for the defendant; the term "plaintiff" is omitted. In this example, the language used throughout the protocol was heavily weighted in favor of the plaintiff.
Scope of Preservation
Preservation is by far the most important component of electronic discovery. Without it, files may change, get lost, or worse, be deleted.
Many ESI protocols include a provision for preservation, but it is tricky to include these requirements. The ESI protocol is an agreement between the parties and sometimes entered into as a Court Order or given the same weight. In the Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, Keurig was sanctioned for its own failure to comply with the preservation provision it agreed to within the ESI protocol. So, be careful what you agree to and either meet your obligation or negotiate it out. The ESI protocol, after all, was originally created to guide the production format. As it matured, litigants began including additional provisions for collection and search, but there were no requirements to do so.
Processing and Analysis
Processing is when litigation support professionals preserve and extract the data from each file and load that data into a data analysis and review platform. Depending on the needed format, processing can instead include converting email and other files to searchable PDF files.
Understanding the production format at this early stage is also paramount to processing the files correctly. For example, deduplication takes place during this phase and it is important to know whether files will be deduplicated against each custodian or only within a single custodian. Many civil litigants agree to deduplicate across all custodians, whereas many government or internal investigations require the latter. When deduplicating across custodians, it is also important to know the priority of the custodians. Meaning, the first custodian in will have all of the files and each custodian after will have their duplicates suppressed.
Processing also assigns a time zone to the clock associated with email, and while this seems inconsequential, it becomes important when custodians are routinely traveling. Foreign language documents are also identified at this step. When foreign documents are anticipated, the ESI protocol often includes a provision to keep them in their original language with all accompanying metadata.
Structured data or databases may also be discussed here but these tend to be very complex and require the parties to share what each system does and what type of information it stores. This often requires the development and exchange of a data dictionary that defines each field in the database.
Search Terms and Technology-Assisted Review
This section demands its own heading, but much like preservation, be careful what you include in the ESI protocol. Should search terms be agreed to, it may make sense to formalize that list and include it here. Similarly, when there is an agreement, technology-assisted review (TAR) protocols are included but, absent from an agreement, there may not be a need to include them or even seek leave of court. See Entrata Inc. v. Yardi Systems, Inc., 2018 WL 5470454 (D. Utah Oct. 29, 2018), quoting Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125, 127 (S.D.N.Y. 2015), “[i]n the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it." See also Williams & Cochrane, LLP, v. Quechan Tribe of the Fort Yuma Indian Reservation, 2020 WL 2747117 (S.D. Cal. 2020): “...the best practice is for the parties to cooperate to reach an agreement regarding custodians and search terms to inform the document production.”
Production is why the ESI protocol was created—to document the format for each type of usable ESI. Like we discussed for processing, production formats need to be known at the beginning of the process even though production happens at the end of the process. Considerations include whether you have access to technology to assist in the review, such as Relativity, or whether the intent is to review everything in PDF. A small number of email and standard Word documents work great in PDF but mobile data and collaborative tools like Slack require something more robust.
Slack and other short message collaborative tools often include hyperlinks to other documents. The protocol may consider describing that relationship and whether the messages should be produced along with the linked documents or whether there is some relationship that is created within the production whereby the reviewer can find the linked document within the production if it is not produced directly after the message.
Privilege Log and Clawback
A description of the needed elements of a privilege log are sometimes included and often pertain to a metadata log or whether email threads need to be broken out.
Lastly, and arguably the most important protection that the ESI protocol can provide, is the inclusion of a Federal Rule 502(d) clawback agreement or any equivalent state rule. Should privileged information be inadvertently produced, Federal Rule 502(d) provides immediate protection to the parties without having to resort to the test under Rule 502(b). This means that any inadvertent production is most often returned to the producing party without question.
The ESI protocol is a complex but invaluable document that protects parties from receiving unusable data.