What is a Litigation Discovery Protocol?
A litigation discovery protocol (aka, ESI Discovery Protocol) governs the preservation, collection, and production of Electronically Stored Information (ESI). For example, an ESI discovery protocol may identify the sources of data to search, date filters and search terms to apply, and production formats.
Do you Need an ESI Discovery Protocol?
Yes! The earlier you develop a discovery protocol the better. First, it will help you and your client comply with preservation obligations and avoid sanctions. Second, you will reduce your eDiscovery costs. Third, it will help you find relevant evidence quickly. After all, the faster you find what you need, the better positioned you will be to negotiate settlements.
What’s better, a Joint or Individual Discovery Protocol?
Commonly, each party to a lawsuit has its own ESI discovery protocol. Ideally, however, the parties will negotiate and agree on a protocol together during their meet and confer conferences. Specifically, it is early negotiation that will limit the scope of discovery and thereby reduce costs for everyone.
What goes in a Litigation Discovery Protocol?
The first goal of an ESI discovery protocol is to identify all sources of potentially relevant information. For example, who are the key custodians and which devices or accounts of theirs should be preserved, and how. Then, you want to determine the best ways to cull the data to help you find relevant items faster. You also need to consider when and how to produce ESI to the other side. Specific items you may agree on include:
- Who are the primary custodians likely to have relevant information.
- Which of those custodians’ devices and accounts (e.g., which phones, computers, emails, or social media accounts) should be preserved.
- Build a list of the relevant search terms and language to apply to cull the data.
- Specify the relevant time frame for the issues in the case.
- Are some data types more important? Which ones are irrelevant? (e.g., text messages? Spreadsheets? Internet history? Emails?)
Over many years, we have developed The Litigation Discovery Protocol, also known as an ESI Discovery Protocol. In fact, both federal and state court discovery orders have referenced it. As your e-Discovery & Digital Forensic Expert, we help you strategize, negotiate, and implement a litigation Discovery Protocol. Critically, it will keep you in compliance with FRCP 26(f) meet and confer requirements. Other items we cover in a litigation Discovery Protocol include:
- Limiting digital communications like text messages, emails, and call logs to only those from certain people;
- Cull privileged communications;
- Layout a Discovery Schedule; and
- Specify the method of production.
Discovery Protocol Implementation
We will help you implement your Discovery Protocol to collect, cull, and prepare electronically stored information (ESI) for legal review. Of course, we exclude all attorney-client and other privileged communications from production to the other party. With the above-described filters, we hone your ESI to the most likely relevant items. Consequently, this greatly reduces costs and increases your response time.