Extract from Kelly Twigger’s article “CaseoftheWeek Episode 120: The Dangers of Agreeing to an ESI Protocol Before Knowing Your Sources of ESI”
In Episode 120, our CEO, Kelly Twigger discusses why agreeing to an ESI protocol excluding sources of ESI before you know what you need is dangerous in ๐๐๐ญ๐ข๐ง ๐๐๐ซ๐ค๐๐ญ๐ฌ ๐๐ซ๐๐ณ๐ข๐ฅ, ๐๐๐ ๐ฏ. ๐๐๐๐ซ๐๐ฅ๐.
Introduction
Welcome to this weekโs episode of Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. Iโm the CEO and founder at eDiscovery Assistant, which is a platform that delivers eDiscovery knowledge on-demand.
Each week on our Case of the Week series, I choose a recent decision in eDiscovery and talk to you about the practical implications of that decision. This weekโs case covers an important and very hot topic in eDiscovery โ ESI protocols. Thereโs a lot of debate going on in our space about whether parties need a protocol, in large part because some attorneys are dragging the process out for months, and insisting on provisions that they are not necessarily entitled to under the rules, and the underlying intent of the protocol is lost. Parties are also entering into protocols as a rote process without really considering the fundamentals of what theyโre doing by putting an enforceable order before the Court, and weโre going to see an example of that here today in our decision.
At eDiscovery Assistant and at my law firm, ESI Attorneys, we advocate for the use of ESI protocols with a strong caveat that you need to be informed about the sources of ESI and issues that need to be included in a protocol that are important for the complexity and value of your case. You need to understand that you are governed by the scope of discovery that allows for relevant, proportional data that is not privileged, but that you also provide for the specifics of the types of data that youโre looking at getting. In todayโs world with what we call โemerging technologiesโ, we see a proliferation of text messages, social media, ephemeral messaging data, and collaboration tools, all of which require planning in an ESI protocol for you to be able to get the data in a way thatโs going to be most useful for you to leverage it to be able to tell your story. We recently created an extensive guide on ESI protocols at eDiscovery Assistant that you can download for free here.
