Electronic (or e-discovery) is a part of most legal cases. The prevalence of data makes it an undeniably important piece in building cases during the digital age.
However, using electronically stored information (ESI) as evidence requires a high level of security. Whether it's collecting digital documents or other files, sequestering that data in a protected environment, or getting it ready for trial, the process of electronic discovery requires an attorney to scrutinize not only the evidence, but also the process used to collect it.
What is an ESI discovery protocol?
An ESI definition must start with the Federal Rule of Civil Procedure 26(f), which requires that both sides of a case meet early in a case to develop a discovery protocol for electronically stored information.
During the meeting, attorneys will swap initial information about clients. This can be any identifying information, including physical addresses, e-mail accounts, telephone numbers, or any other avenues for digital evidence collection. Once this information is exchanged, they move to the next phase – creating a protocol.
An ESI protocol is a mutually agreed upon plan on how both sides will access data and, eventually, make it available to the other side. While these are usually informal meetings designed to help attorneys work together, ESI protocols are considered legal agreements. Once the terms are set and agreed to, they are sent to the judge, who enters it into the record as a formal order.
Even though the differences in cases that might need an ESI protocol are countless, some common issues and topics are usually covered.
What topics are commonly covered in an ESI discovery protocol?
The negotiation of an ESI discovery protocol usually includes a few standard topics or issues, no matter what the case will decide.
These include, but are not limited to, the scope of the data collection, the formats of the eventual court documents, how the information will be secured and handled, and any miscellaneous or case-specific considerations.
The scope of the data collection is critical for a few reasons. Limiting the dates that are searchable, as well as the people who can be contacted to provide information, protect the privacy rights of potential search subjects. The scope of the search also applies to how the data is collected. Will it be done by keyword search, or will a program be used to crawl through all available data, searching for specific pieces of information?
The format used is a practical question, but one that is necessary. Many electronic files are produced in the TIFF format, as opposed to the original or native format. This standardization makes the files easier to handle before and during the trial.
However, how the information is organized also needs to be decided. Will emails be grouped together or separate? Will metadata be produced? The questions surrounding formatting will largely be determined by the particulars of the case.
Finally, the integrity of the collected information is important. Sometimes an inadvertent or non-admissible piece of information is found during an ESI discovery procedure. A protocol helps attorneys agree on when that information can be used and when it cannot.
Why should attorneys create an ESI discovery protocol?
An attorney enters into an ESI discovery protocol for a few reasons, but mostly because it is often a requirement for cases with large amounts of electronic evidence. However, even if it wasn't required, there are intrinsic benefits to the ESI discovery process for attorneys on both sides of the proceeding.
First and foremost, it gives them access to specific identifying information of relevant and material witnesses in their case. Instead of blindly looking for evidence in a sea of electronic data, attorneys have a path – one that is often marked by specific times, dates, and specific ways of communicating in the digital realm.
While most of e-discovery, in a sense, is considered a form of computer hacking, knowing what is and what isn't searchable – not to mention admissible – is critical for attorneys to know at the start of the case. Not only will a protocol keep them on the right side of the law (and in the good graces of the presiding judge), it also ensures their case is as strong as possible when it goes to trial.
How can ediscovery platforms help with ESI?
Electronic discovery involves an enormous amount of research. The resulting information is not only overwhelming but the time it takes to sort through and catalogue such information can quickly overtake a legal team's pre-trial process.
In response, there are many software and online platforms available to help attorneys navigate the complexities e-discovery and ESI protocol creation. Most programs offer enhanced clarity and efficiency as the primary benefit. However, premium services provide extra tools to make the process even smoother.
These can include the ability to cut document review time, which in turn decreases costs. They also offer intuitive interfaces that give attorneys the ability to hand off tedious, non-legal tasks to employees.
Most importantly, an e-discovery platform brings transparency. Attorneys can see the entire discovery process, from collection to presentation, which allows case strategies to be built with precision and confidence.