Scott J. Etish, Jennifer A. Hradil and Kevin H. Gilmore: Fools Rush In: The Importance of Negotiating Comprehensive ESI Protocols

Extract from Scott J. Etish, Jennifer A. Hradil and Kevin H. Gilmore’s article “Fools Rush In: The Importance of Negotiating Comprehensive ESI Protocols”

Embarking on discovery without first entering into a negotiated protocol regarding electronically stored information (ESI) is like flying blind. An ESI protocol allows parties to address a myriad of critical discovery issues, from such basic issues as the sources of electronic discovery, the exchange of metadata, and the form of production, to more technical issues, including the use (or non-use) of various technologies, such as technology-assisted review (TAR) and email threading, and the protection of irrelevant information within otherwise responsive material. A comprehensive protocol—entered between parties who appreciate and have fully considered the pros and cons of available technology—can go a long way toward avoiding costly disputes. More importantly, good faith participation in this process is required to avoid the imposition of sanctions pursuant to Federal Rule of Civil Procedure 37(f).

Particularly relevant to conducting discovery given constantly changing technologies, an attorney’s duty to provide competent representation includes a duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” ABA Model Rule 1.1, cmt. 8; see also New Jersey Rule of Professional Conduct (RPC) 1.1.

Apart from counsel’s ethical obligations to understand available technologies, two recent cases (both in the context of disagreements about TAR) suggest that a party’s choices on these issues may significantly impact future motion practice between the parties.

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