Ediscovery challenges and discovery disputes are avoidable if you plan ahead and stick to your ESI protocols. Here are 7 scenarios you might find yourself in during discovery and how you can avoid them through thorough planning.
Discovery of electronically stored information can sometimes seem daunting and overwhelming for those unfamiliar, and even for the experienced legal professional. There are a few common pitfalls that any ESI discovery project can fall prey to, but these can be avoided through detailed ESI protocols that have been negotiated with opposing counsel at the Rule 26(f) Meet and Confer.
If you neglect this step of the ediscovery process, you may find yourself gridlocked in a discovery dispute, wasting precious time that could be used to advance your case. To master the beast that is ESI, here are a few potential obstacles to keep in mind as you develop ESI protocols, which will ultimately keep your ediscovery journey on the right path.
1. Ediscovery Collection Challenges
Issue: You have trouble recovering deleted information or collecting a specific type of ESI.
How To Avoid It: Understand your client’s ESI. This is a crucial first step in ediscovery.
Think of whether discovery might involve recovering deleted data or collecting unique file types, and decide whether computer forensics specialists may need to be involved. For example, if your case involves discovery of atypical forms of ESI, like Slack or MS Teams data, you may want to plan and budget for an expert’s involvement. Or, if your client deleted relevant electronic data before a litigation hold was ordered, you may need professional assistance to recover it.
To prepare for these various ediscovery scenarios, attorneys should regularly consult their clients and gain a full understanding of all the relevant ESI.
Here are a few key questions you should ask:
- Where is the information housed? Is the data stored on servers, a cloud, or individual desktops?
- Who is in control of the information? Are there multiple individuals in charge of the information, and where are they located?
- What form is the ESI in? What are the file types? Are the documents in PDF, readable PDF, word, TIFF, Excel, or some other proprietary system of record?
These are all critical elements to establishing a solid ESI protocol – the who, what, where, and how many? These are the primary questions that will (and should) be discussed during initial ediscovery meetings. Knowing the answers to these questions can minimize time spent tracking down missing information and limit the number of times you have to go back to a client, revise orders, and recover deleted information due to a missed litigation hold.
2. Your Team Is Spread Thin
Issue: Discovery is too broad and absorbs too many resources.
How To Avoid It: Be sure to specify the scope of discovery in your ESI protocols, but be ready to make adjustments if your protocols are too wide or too narrow.
An ESI protocol is a negotiated agreement between parties involved in litigation that lays out how relevant ESI documents are identified, preserved, collected, processed, reviewed, and produced by the opposing counsel. Each side must lay out the road map for how the search for ESI will be conducted.
Here are a few questions that can help you understand the scope of your ediscovery matter:
- Will documents be identified by search terms, file types, or another method?
- Will either side utilize Technology Assisted Review (TAR) tools, such as predictive coding?
- If the parties agree to specific search terms, what will those search terms be, and how will the relevant search terms be determined?
Keep in mind that each software platform may have the ability to denote “key terms” in the data set, and that any search terms should be defined within those terms in order to avoid roadblocks or confusion later in the process. During this time, parties should also discuss contingencies if searches do not return results or return too many results. Both sides should also determine budget and risk tolerances.
Here are three more essential questions to ask as you negotiate with opposing counsel:
Remember that what works for one case may not work for the rest. When working with ESI discovery, you must remember that you and your client are not the only parties to the case – flexibility and cooperation can go a long way. There is no tried and true way to approach ESI discovery. You may even find yourself returning to earlier stages and bringing in more data as your understanding of the case changes the data load. Even with experience, each case brings unique ediscovery challenges. Be prepared to address these as they arise and develop new solutions and workarounds.
Do not back down if you think particular search terms are necessary for the discovery, even if the other side feels they are too broad. However, be prepared for additional work, including proportionality hearings and potential additional costs if data mining is needed in archived systems. The last thing you want is for a judge to rule that your request outweighs the need of the case, sending you back to the drawing board.
3. Ediscovery Technology and Metadata
Issue: Opposing counsel didn’t use specialized ediscovery software and was unable to produce documents in the desired formats with requested metadata.
How To Avoid It: Agree on ediscovery software in the ESI protocols. Whatever you choose, you must ensure both sides have the tools to produce and share ESI in the necessary formats.
Both sides should discuss which platform they will use for ediscovery when negotiating ESI protocols. While each side might have a preferred platform, not all ediscovery software is built the same. In fact, some firms prefer to use generic tools like Adobe Acrobat for document review, which can limit their options when it comes to production. Reaching an agreement on the platforms is a critical starting point that will allow both sides to start building the road map for the ESI protocol.
If opposing counsel insists on using a simple tool like Acrobat, make it clear that they will still be required to include all the requested metadata with their production, most likely in the form of a load file. Ideally, both sides will agree to use specialized ediscovery software like Nextpoint, which will ensure evidence is properly preserved and simplify document exchange.
Each ESI platform has its language and key terms. Parties should research each platform and determine what is best for the case. It is essential to understand these nuances when building out your ESI protocol. During this process, it is also crucial for both sides to speak with the platform provider, obtain a hit report for your proposed vital terms, and speak with the vendor about the number of hits. These open discussions will help you better plan the ESI protocol and prevent disagreements and pitfalls with crucial search terms during the process, which could lead to costly and time-consuming disputes.
4. Date Range Issues
Issue: Opposing counsel produces documents without dates in the file, so you can’t cull and organize by date range.
How To Avoid It: Specify which metadata should be included with productions.
Developing specific requirements for productions is essential to avoiding ediscovery challenges down the road. It allows parties to point to particular requests if data is not delivered appropriately or is missing information such as dates and authors. It also preserves challenges should a party refuse to produce requested data. In addition to dates, you may want to ask for other types of metadata, like author, date created and last modified, edit history, native application, and more.
One way to prevent potential issues is to be specific in your protocol. In other words, don’t generalize. If you need produced data to include the author, date, platform, notes, edits, etc., make sure that information is in the discussed protocol. If the opposing party does not produce, do not gloss over it. Hold them to it, and if they resist and the information is critical to the story of the case, try to compel.
Having an agreed-upon protocol with specific requirements not only provides a road map for both sides, but it also provides a safety net should something go astray.
5. Production and File Formats
Issue: You received files in the wrong format, which limits the information you can access.
How To Avoid It: Think about which formats you’ll need and why. Specify in your protocols.
Once upon a time, data only came in a handful of formats. Now, not only can the data come in different forms, the formats themselves may contain different information. For instance, you may receive a PowerPoint as a PDF instead of its native format, so you cannot see the speaker notes. Or, you could receive an imaged file of an Excel spreadsheet, which would not give you access to embedded formulas and formatting. With businesses using social media, chat tools, audio/video, and other data-generating means of communication beyond email, a wide range of possible sources of relevant information exists.
Failing to ensure such types of data are available during litigation carries the same burden as email chain production, and negligent production of such data can lead to sanctions. Parties must be aware of the original form, know the information they seek, and develop relevant ediscovery protocols around the desired outcome.
These questions can help you determine what information you may need from the ESI:
- Do you need the metadata, comments to a post, speaker’s notes, etc.?
- Are you looking for the author of the post or document?
- Does the date matter or just the content?
- Did opposing counsel deliver in the format requested?
- Does the data answer the relevant discovery request?
These questions drive ESI discovery and can ease the process of preventing miscommunication or preserving a challenge in the court should opposing counsel not comply with the discovery request or push back on what they wish to provide.
6. Privilege Woes
Issue: One party mistakenly produces privileged information.
How To Avoid It: Outline how you will handle privileged information in the ESI protocols, including specifications on clawback agreements.
Even with the utmost care and preparation, accidents can happen, especially in ediscovery. To reduce risk, parties partaking in ESI discovery should utilize a clawback agreement. Clawback agreements are essentially a contract between parties as to what happens in the event privileged material is produced.
Clawback agreements are constructed with the spirit of FRCP 502(d) or a state equivalent, which protects privileged information. These agreements are beneficial when no state is equivalent to 502(d). Clawback agreements are usually “no-fault” or “irrespective of care” provisions. A “no-fault clause” allows inadvertently produced privileged materials to be returned without a waiver of privilege regardless of the steps the producing party did (or did not) take to prevent the disclosure.
Entering such an agreement can prevent time-consuming and costly discovery disputes defending claims about why inadvertently produced ESI material is privileged and should remain as such.
7. The Data Dump
Issue: Opposing counsel sends a vast amount of irrelevant ESI.
How To Avoid It: Remember to specify what’s NOT included in productions.
Data dumps are no different in ESI than traditional discovery. They can be tactics to overwhelm or lead astray, essentially creating a needle in the haystack. In the courts, data dumps can also be punishable by sanction, just like failure to produce or withhold information.
However, like other ediscovery challenges you might face, a data dump can be avoided by outlining what is included and what is to be excluded from discovery. It’s all about the Who? What? When? And where? Limiting the data scope can prevent unnecessary delays and excess costs.
Additionally, work with the ESI platform provider to use deduplication functions and have the opposing party validate results. Deduplication is a process that eliminates excessive copies of data and can significantly help to reduce review time.
Always have the other side review the results, though, as sometimes deduplication can remove relevant data based on how it was classified. When creating the protocol for ediscovery, do your footwork, look for loopholes, close any backdoors that might be present, and strike a balance that works for you and the case.
Bottom Line: Avoid Ediscovery Challenges With ESI Protocols
Ultimately, the most important thing to remember about ediscovery challenges and ESI protocols is to set up a road map. Each case is different, and the path of your ediscovery protocols will differ depending on the subject matter, party preference, key terms, and even the chosen platform. Creating a detailed plan for the discovery journey, allowing for contingencies, and communicating the plan to both sides can reduce issues and common mistakes, resulting in a smoother ediscovery experience.
