Originally published on The Dispute Resolver, the ABA Construction Forum‘s official blog, this post explains how a detailed ESI protocol can add clarity to ediscovery and lead to smoother case planning in every step of the construction litigation process.
Establishing an ESI protocol might seem daunting at first, but answering a few simple questions at the outset of your case will help you stay on top of complicated and confusing eDiscovery matters. This process is even more important in construction litigation, which often includes large amounts of complex data from several different sources and custodians. This checklist lays out the questions that will help you create a strong ESI protocol and maintain a smooth eDiscovery process in your construction cases.
ESI stands for Electronically Stored Information, or the digital evidence that dominates most modern litigation – especially construction litigation. Your ESI protocol will lay out your plan for handling this digital evidence. It covers how you will collect and filter data, deduplicate documents, produce evidence, manage privilege logs, and much more. It becomes the road map that guides you through ediscovery (and beyond)!
With strong ESI protocols for construction litigation, you’ll show up to your Meet and Confer knowing exactly what you need from opposing counsel. These clear requests will prevent road bumps later on in discovery.
What are the benefits of a standardized ESI protocol?
Here are five key advantages that lawyers gain through developing a protocol:
- You’ll think through discovery for the entire matter.
- A well-drafted protocol will protect your client’s data and their interests.
- You’ll identify sources of data that require additional consideration and planning for collection and production.
- You can leverage the protocol for third-party data.
- It’s your discovery blueprint for the case and you’ll go back to it time and time again.
Your ESI Protocol Checklist
Think through these questions to ensure that no potential issues are overlooked when developing your protocol for construction litigation.
1. Do you currently have an ESI protocol template in-house?
If you have protocols from past cases, you can use them to create a basic template and tailor it to meet the needs of your current case. If not, there are many matters today where acceptable ESI protocols have been submitted and approved, and those can be helpful in building your own.
2. What type of case are you involved in, and what are the relevant common data challenges?
The type of case you’re working on will influence the types of ESI that you’ll need to focus on in your protocol. In our last post on The Dispute Resolver, we covered three common data challenges that we typically see in construction litigation. Understanding these challenges is an essential step in crafting an ESI protocol that is tailored to your case.
3. What type of productions have you delivered/received in the past, outside of your current matter?
Think about what you can learn from previous productions. What metadata did you find most useful? Were there times that you needed files in their native format? Did you face any hiccups that could have been prevented? Looking at some “lessons learned” from past matters can be helpful to better customizing your ESI protocols so it covers what you need.
4. What type of venue will the proceedings be held in?
Consider whether there are any discovery rules or guidelines specific to the venue of your case. Some Federal Courts have detailed guidelines that instruct the parties how to navigate eDiscovery, but unfortunately, most State Courts haven’t addressed these issues.
5. What type of firm(s) is your Opposing Counsel? (e.g. Mid/Large/Solo)
Different sized firms will have varied resources and approaches to eDiscovery. If you work in a small firm, here are some tips on how to level the playing field in eDiscovery.
6. Where will the majority of your data be collected from?
Think about potential relevant custodians and where their data lies. Will you have to physically collect data from a laptop or backup server? Are social media accounts going to play a role in the case? Is relevant information being discussed in text message form?
7. Is there any proprietary software at issue?
Proprietary or closed-source software is copyrighted by the developer and not free for open use, which can complicate its role in legal issues. You may want to include discussions around cost sharing for necessary licenses. Construction litigation often involves proprietary software used for building information modeling (BIM) such as Autodesk, Revit, as well as specialized project management software such as Primavera or Buildertrend.
8. Will there be any hard-copy paper documents to collect?
Consider whether you can negotiate to have paper documents scanned prior to simplify review. Ensure proper measures are being taken at the time of scanning, so organization structures are not lost during an electronic conversion.
9. What type of metadata do you anticipate being most crucial during your review? (i.e. When v. Where v. Who)
Metadata, such as timestamps and email authors, is key to streamlining document review. Even if the information is included in the text of the document, it’s still important to ensure that metadata is included in a load file for searching and filtering purposes. It always works better to discuss this upfront because it is extremely difficult to recreate missing metadata after the fact.
10. Will any culling/filtering method be applicable in your case?
If you or your opposing counsel plan to use predetermined search terms, predictive coding, or other TAR (Technology Assisted Review) tools, you should specify how they will be applied. In any case, early data filtering is an important part of simplifying discovery and reducing costs, so consider which methods you will use and how much transparency you may want between parties.
11. How do you want privilege and/or your privilege log handled?
With the large data volumes common in most modern litigation, it’s become increasingly difficult for lawyers to prevent inadvertent disclosures. Creating a no-fault standard in your ESI protocol for construction litigation can help deter discussions around “reasonable steps” if said disclosure occurs in the course of discovery exchange.
12. How do you want deduplication handled? (i.e. Universal v. Isolated Source)
Deduplication is one way you can reduce your initial data set. Here are some tips for better understanding deduplication.
13. What are your production delivery methods and goals?
Be sure to specify a secure delivery method for the productions. Electronic deliveries are the most efficient solution and offer more protections than sending physical hard drives. However, you must be sure to select a secure file-sharing tool, such as Nextpoint’s data exchange feature.
Download the Full ESI Protocol Checklist
Want this checklist in a handy, shareable format? Download our free PDF version and keep it on hand for your next construction litigation matter.
Explore More Construction Litigation Resources
For more insights and resources tailored to construction litigation, visit our dedicated Construction Litigation page. Whether you’re developing an ESI protocol or managing complex ediscovery challenges, we’re here to help you navigate every step of the process smoothly.
