Dallas Masters 2020 ESI Stipulation
Title: Avoiding Disputes – Using ESI Protocols & Rule 502(d) Orders to Bring Efficiency & Certainty to the eDiscovery Lifecycle
* Description: With electronic information driving discovery, the agreement the parties reach on how to handle ESI should be the guiding force for discovery on a matter. This panel will explore how to identify the case specific issues to be included in the ESI Protocol, issues to consider on form of production, types of ESI to be included and accommodated, privilege and inadvertent production protections and third party discovery. We’ll also address how to use the agreement throughout the matter to educate the court on issues, reduce disputes and provide a clear framework for discovery that all parties can follow. The result is a more efficient discovery process that reduces costs and distractions and allows counsel to focus on the merits of the case.
* Selected Questions:
* Forest rather than trees – and just to level set with our audience. What is an ESI protocol (aka ESI stipulation and proposed order)? And how does it relate to the major eDiscovery lifecycle stages, as described by (for example) the EDRM? What stages of the EDRM does a typical ESI protocol cover?
* What “homework” do you need to do with your client in order to negotiate effectively the terms of a typical ESI protocol? Are there checklists out there that can help you with such client and third party interviews?
* What are some of the typical provisions you might find in an ESI protocol concerning the identification, preservation, and search of ESI? Do you ever (for example) specify lists of custodians to be preserved, applicable date ranges, preservation methods, and even sources of data that might not be considered “reasonably accessible” in your protocol?
* Similarly, what are some of the typical provisions you might find in an ESI protocol concerning format of production?
* Related question -- many of us have had the experience of facing opposing counsel who says “I want everything in native format.” What do they mean by this, and what is an appropriate response and compromise that might be included in an ESI protocol?
* How does the ESI protocol relate (in the federal courts) to the Rule 26(f) meet and confer process and the Rule 16(b) joint report of parties, hearing, and scheduling order process?
* How often (if at all) do you involve a technical expert either in preparing for the negotiation of an ESI protocol or during an actual Rule 26(f) conference?
* What is the most difficult aspect of an ESI protocol that you have ever negotiated? On the other hand, are there other aspects of your typical ESI protocol that are “easy negotiating wins” and that can be used to bolster “getting to yes” on the larger stipulation?
* A number of federal courts now have specific local and even chambers rules and model orders governing eDiscovery generally, and the ESI protocol in particular. Do you have a favorite model order? Are there any provisions in a given model order that you find especially interesting or helpful to you and your clients?
* Protecting attorney-client privilege and work product immunity is always top of mind. How can the ESI protocol – and specifically a Rule 502(d) order – help with such protections?
* Do you ever address privilege log format and procedure in your ESI protocols?
