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 𝐋𝐚𝐭𝐢𝐧 𝐌𝐚𝐫𝐤𝐞𝐭𝐬 𝐁𝐫𝐚𝐳𝐢𝐥, 𝐋𝐋𝐂 𝐯. 𝐌𝐜𝐀𝐫𝐝𝐥𝐞.
Welcome to this week’s episode of Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I’m 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 week’s case covers an important and very hot topic in eDiscovery — ESI protocols. There’s 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 they’re doing by putting an enforceable order before the Court, and we’re 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 you’re looking at getting. In today’s world with what we call “emerging technologies”, 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 that’s 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.