ESI PROTOCOL 101 ESI PROTOCOL 101

A Tale of Two A Tale of Two Perspectives Perspectives

• Kimberly Scott is a partner at Miller, Canfield, Paddock & Stone where she specializes in antitrust law; sports, media and entertainment law; and commercial contract and tort litigation. She also handles complex commercial litigation discovery as well as electronically stored information management issues. Contact Kimberly at scott@millercanfield.com.

• Mark Manoukian has spent the last 18 years in legal IT at Kegler, Brown. He is a steering committee member for ILTA’s Emerging Technologies Peer Group and has previously served as the peer group’s vice president. Mark frequently gives presentations and writes about legal technology. He can be contacted at mmanoukian@keglerbrown.com.

• Cindy MacBean, is a highly experienced litigation support professional who has managed litigation support in both corporate legal departments and an Am Law 100 law firm. She is a member of ILTA's Litigation and Practice Support Peer Group Steering Committee. Contact Cindy at cmacbean@wthf.com.

Speakers Speakers

• Agreement between parties with or without Court participation that governs the who, what, when and how of Discovery activities • What data sources that are going to be

produced • When key Discovery dates are scheduled • How data is going to be produced

ESI Protocol ESI Protocol

May be incorporated in a Discovery Plan, a completely negotiated agreement about due dates and deliverables – that is 90% attorney related

The ESI Protocol discusses the deliverables for discovery production that includes the negotiated items from a overall  perspective that is an attorney document with significant input from IT / Lit Support

Logistical details that is mostly technical but needs to be agreed to,  fields, formats, etc.   Usually every party makes sure their technical interests are covered.

ESI Protocol ESI Protocol

• Federal Court has defined a Discovery Plan that is due about the time the parties complete the 26(f) conference.

• Some state courts mimic the Federal Rule requirements

• Other state / county courts may or may not have rules

• Other forums, like Arbitration, can have voluntary Discovery Plan

Common to ALL VenuesCommon to ALL Venues

Discovery Plan – Discovery Plan – Components Components

• Case Information • Overall Timeframe• Discovery Needed• Mandatory Disclosures• ESI Disclosures • Stipulation re: Privilege

Claims• Completion of

Discovery • Interrogatories• Request for Admission

• Depositions• Date of Expert Disclosures,

Supplementations and Challenges

• Clawback Agreements• Protective Orders• Other Items

• Production of Hard Copy Documents • Production of ESI • Production of Proprietary Files • Special formatting for Excel, Word, PowerPoint

files• Rolling or one-time production • Non-Party Productions• Good Faith Negotiation • Process to fine-tune agreements

Negotiated Terms of Negotiated Terms of Discovery Productions Discovery Productions

• Exact specifics and formats of files and load files

• Email production specifics • Native / Tiff image productions • Hard Copy & Metadata fields to be produced • Text files to be included and format • Log file formats for excepted files • Redactions • Protected Documents

Nitty-Gritty Details Nitty-Gritty Details

•When is IT / Lit Support engaged? • Leading up to the Discovery Plan /

26(f) • When discussion / negotiating the

discovery agreements • Productions begin

The Reality of the Protocol The Reality of the Protocol

• What do you worry about ? • Where is your focus ? • What logistical concerns do you have ? • What details do you need to communicate ?

Attorney | IT PerspectivesAttorney | IT Perspectives

Questions?Questions?

• Eastern District of Michigan’s Model Order Relating to the Discovery of Electronically Stored Information (ESI) Checklist for Rule 26(f) Meet and Confer Regarding ESI: http://www.mied.uscourts.gov/News/Docs/EsiOrderChecklist.pdf

• Northern District of California’s Guidelines for the Discovery of Electronically Stored Information; ESI Checklist for use during the Rule 26(f) meet and confer process; and Model Stipulated Order Re: The Discovery of Electronically Stored Information: http://www.cand.uscourts.gov/eDiscoveryGuidelines

• District Court of New Hampshire’s Discovery Plan: http://www.nhd.uscourts.gov/pdf/Civil%20Form%202.pdf

REFERENCESREFERENCES