ESI Protocol

Technocat Tidbits: What Is An ESI Protocol

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Hey there, fellow legal tech enthusiasts! It’s Cat Casey, back with another installment to help you navigate the legal tech maze. Today, we’re diving deep into the world of ESI Protocols. If you’re thinking, “ESI-what-now?”, worry not, we’re about to unpack this term like it’s a care package from Legal Tech Heaven.

So, What’s the ESI Protocol Deal?

Let’s get the legalese out of the way. ESI stands for Electronically Stored Information. That’s right, all those juicy emails, cringy texts, and hidden Slack channels fall under this umbrella. The protocol parts. Well, that’s the rulebook that outlines how you’re going to manage, document review, and share this digital goldmine during the electronic discovery (eDiscovery) process in a legal case. Simply put, an ESI Protocol is a pre-game strategy for handling electronic evidence and cutting off discovery issues at the outset.

So, the ESI Protocol? Think of it as the ultimate prenup between warring parties in litigation. This baby sets the rules of the game, detailing how you and your legal frenemies are going to handle all that juicy electronic data. No surprises, no “gotchas,” and no chaos.

This agreement is your eDiscovery peace treaty. It makes sure that everyone’s on the same page about preserving, collecting, processing, and handing over all that digital gold in a format that’s not just agreeable, but useful. So, instead of finding out too late that you’re speaking different digital dialects, this protocol keeps everyone bilingual in the universal language of ESI.

terms and conditions on paper

The ESI Protocol Isn’t a Suggestion, It’s a Must!

Some folks treat ESI Protocols like those ‘Terms & Conditions’ pop-ups we all pretend to read and then ignore. Big mistake. A well-crafted ESI Protocol helps you avoid pitfalls like spoliation charges, missed deadlines, and worst of all, irritated judges. Plus, when you’ve got an agreed-upon playbook, the chances of disputes arising during litigation go down faster than a cold brew on a hot summer day.

Alright, let’s talk FRCP (Federal Rules of Civil Procedure) and its love affair with ESI Protocols. The rules might sound like something out of a stuffy law textbook, but trust me, they’re your roadmap, your GPS, your North Star in the eDiscovery universe.

Now, the FRCP doesn’t explicitly say, “Hey, you need an ESI Protocol, stat!” However, they strongly suggest—nudge, nudge—that you get your electronic house in order. It’s like your mom hinting you should clean your room before she resorts to drastic measures.

clients meeting and confering

Rule 26(f) – The “Meet and Confer”

Rule 26(f) is the cocktail party of pre-trial procedures. It requires parties to meet, discuss, and attempt to agree on all things eDiscovery. While the rule itself doesn’t spell out ESI Protocol, it’s the perfect setting to hammer out these specifics. Because let’s face it, if you can agree on how to handle your digital data here, you’re less likely to face contentious arguments later. Just think of your ESI Protocol as the hors d’oeuvres that everyone can enjoy without any squabbling.

Rule 34 – Format of Discovery (Not The Other One)

Rule 34 talks about the form in which electronic data should be produced. While it doesn’t hold up a sign saying, “ESI Protocol Needed,” the implication is clear. You’d better figure out beforehand whether you’re delivering your ESI as native files, TIFFs, PDFs, or singing telegrams (okay, maybe not that last one).

Rule 37(e) – Spoliation

Ah, Rule 37(e), the rule that makes legal teams break into a cold sweat. This one deals with the failure to preserve ESI and the penalties that can come with it. Having a solid ESI Protocol can be your Get Out of Jail Free card if you ever find yourself in the spoliation danger zone. It shows you took reasonable steps to preserve data, and that can go a long way in court.

So, while the FRCP may not shout from the rooftops about ESI Protocols, they’ve left enough breadcrumbs to make it clear that having one is in your best interest. Consider it your unofficial guide to making sure you don’t trip up on any electronic snafus during litigation. Because nobody likes a messy eDiscovery, am I right?

cartoon birds eating worms

The “When” – Early Bird Gets the Worm

So, we know that an ESI protocol is critically important… now what? Don’t wait until you’re knee-deep in litigation to start thinking about an ESI Protocol. This baby should be front and center during your Rule 26(f) “Meet and Confer” session. Yes, that initial powwow where both sides try to play nice (or at least, play fair). So, before you even fire up your eDiscovery tools, grab a seat at the table—virtually or otherwise—and hammer out those ESI logistics.

iron man illustration

The “By Whom” – The Avengers of ESI

Creating an ESI Protocol isn’t a one-person show; it’s an ensemble cast of key players. Think of it as assembling your Avengers, but for eDiscovery.

  1. eDiscovery Counsel: This is your Iron Man. They bring the tech knowledge and legal prowess that keep the whole operation humming.
  2. In-House Legal Team: Call them your Thor; they wield the hammer of company policy and internal procedures.
  3. IT Specialists: These are your Hawkeyes, the sharpshooters who know your data environment like the back of their hand. They can pinpoint exactly where those crucial emails are hiding.
  4. Paralegals and Project Managers: I like to think of them as the Black Widows of the operation—highly skilled and meticulous, perfect for managing deadlines and ensuring that all i’s are dotted, and t’s are crossed.
  5. Outside Experts: Every Avengers team needs a Nick Fury, someone external with an overarching perspective. These might be third-party eDiscovery consultants who’ve seen it all and have the T-shirts to prove it.

And let’s not forget the opposing counsel. Yep, your rival superheroes. They need to be part of this too because the court loves it when everyone plays fair and square. And this will make claims around proportionality down the road much harder.

How It Goes Down

So, you get your dream team together and hash out the nitty-gritty. Scope of Discovery? Check. Data Custodians? Nailed it. Data Formats? Sorted. And the list goes on. Once everyone’s signed off (yes, literally), you’ve got yourself an ESI Protocol that should withstand the rigors of even the most intense legal battle.

Just remember, an ESI Protocol isn’t just paperwork; it’s the spine of your eDiscovery strategy. So, give it the attention it deserves, and it’ll have your back throughout the case.

screws nuts and bolts

What’s in an ESI Protocol: Nuts and Bolts

Okay, so what should this magical document contain? Well, here’s a tasting platter of some key ingredients:

  1. Scope of Discovery: Outline what ESI is relevant to the eDiscovery in a case. You don’t need Aunt Sally’s cookie recipes unless you’re embroiled in a cookie-related dispute (and if you are, call me; I’m intrigued). Sure, Aunt Sally’s cookies are legendary, but let’s focus on the data that matters.

When outlining your scope of eDiscovery, you’ll need to zero in on the types of ESI that are critical. Are you looking at emails, chat logs, Text messages or maybe even Slack or instant messages? What about specific types of metadata? Yeah, get granular, like specifying whether the ‘To,’ ‘From,’ and ‘Date’ fields are pertinent. Tailoring your scope means fewer terabytes to sift through and a less costly review process.

  1. Data Custodians: Oh, those lovely data custodians—the folks who guard the digital treasure troves. Now, in your ESI Protocol, you’ll want to not only identify who these individuals are but also what specific data sets they control. Do they manage corporate email servers, or are they the lords of the SharePoint realms? Pin this down. And make sure you have a Data Map, a graphic representation of where each type of data resides. List the keepers of the electronic vaults. These are people who have control over the data you need.
  2. Data Formats: Specify how the data should be formatted when shared. It’s like agreeing on whether you’re watching a movie in HD or 4K. Imagine if half your movie is in 4K, and the other half in standard definition. A total buzzkill, right? Same thing in eDiscovery and this trove of electronic documents. Make sure you specify whether you want native files with all their glorious metadata fields or if TIFF images with a metadata load file will suffice. Each has its pros and cons, so choose wisely depending on your case needs.
  3. Review Process: Spell out your plans for how you’ll review and filter out irrelevant data. This is where you strut your stuff. Are you using TAR (Technology-Assisted Review), keyword searching, or concept clustering? Spell it out.

If your review process involves multiple passes with senior reviewers handling complex privilege issues, let that shine in your protocol. Oh, and if you’re applying any analytics—say, email threading or sentiment analysis—boast about it here. Make sure you also mention your approach to QC (Quality Control), folks, because no one likes sloppy seconds.

  1. Production Format: The grand finale, folks: TIFF or PDF? Maybe even native files for some specific types of ESI? Let the debate end here. In your ESI Protocol, specify whether you’ll be handing over TIFFs with accompanying OPT files or whether you’re going the PDF route with Bates numbering. And for goodness’ sake, clarify your redaction strategy. Are you redacting on native files and then converting to images? Lay it all out when it comes to form of production.
  2. Deadlines: Because believe it or not, “I forgot” doesn’t hold up so well in court. What’s the deadline for the first batch of collected ESI? And when does production need to be in the hands of the opposing party? ‘I forgot’ isn’t going to cut it, so make sure these dates are etched in stone, or better yet, in your case management software.
woman writing on paper

Get It in Writing

I can’t stress this enough: Document, document, document. Your ESI Protocol should be as written and formal as a Jane Austen novel, but without the flowery language. And remember to get all parties to agree on it. A nod or a handshake won’t cut it here. you are after all making an agreement with opposing parties!

It’s Not Set in Stone

Like your favorite streaming series, an ESI Protocol can have twists and turns. Much like the eDiscovery process, everything from time frame to data sources to date ranges may evolve as the case and your understanding of the data and key issues evolve.

As you get deeper into the case, you may need to adjust your parameters or deadlines. If that’s the case, go back, get everyone to agree on the new terms, and proceed. And document the new agreed-upon terms… cross those t’s and cross those I’s my friends!

In Closing, Folks

Mastering ESI Protocols is like learning the choreography to a viral TikTok dance. It may seem complicated at first, but once you get the hang of it, you’ll wonder why you ever struggled. So, stop treating ESI Protocols like optional reading and start seeing them as your syllabus for success in the modern legal landscape.

Signing off for now but stay tuned for more legal tech wisdom coming your way. Keep breaking down those barriers and making those ESI Protocols work for you, not against you!

Catherine “Cat” Casey on EmailCatherine “Cat” Casey on Linkedin
Catherine “Cat” Casey
Chief Growth Officer at Reveal
Catherine “Cat” Casey is the chief growth officer for leading AI-powered e-discovery technology Reveal. A global thought leader on the application of AI and advanced technology to the practice of law. She is a frequent keynote speaker and outspoken advocate of legal professionals embracing technology to deliver better legal outcomes. Casey has more than a decade and a half of experience assisting clients with complex e-discovery and forensic needs that arise from litigation, expansive regulation, and complex contractual relationships. Casey has an A.L.B. from Harvard University and attended Pepperdine School of Law.

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