Electronically stored information (ESI) protocols are often negotiated carefully, particularly in complex litigation and other cases where the volume of discovery is likely to be high, because the litigants recognize that the protocol sets the ground rules for discovery for the duration of the litigation. These protocols can often reflect the attitudes of the litigants—at least in regard to what the litigants feel may be important in the particular case. Here a few trends in part one of a two part blog post.
Scope. ESI protocols are becoming more focused. For example, preservation obligations are beginning to migrate from protocols to more specific stand-alone preservation consent orders. Some protocols are now using general language to incorporate existing (or future) preservation orders. There could be several reasons for this. First, litigants realize how important preservation obligations are and may prefer a separate order which lays out the parties’ obligations in more detail. Second, ESI Protocols could take months to negotiate. Preservation obligations arise before a protocol is filed, so litigants may not want to wait that long to get something filed.
Similarly, parties are tending to incorporate existing (or future) protective orders or confidentiality agreements into the protocol. Again, the reasoning for this could be that protective orders are detailed and be better handled in separate order. Also, some jurisdictions mandate use of form protective orders, which would require an order to be separate from the protocol.
Format. Production in native format for certain file types and TIFF (Tagg Image File Format) for the remainder is becoming more common. Video and audio files cannot be produced in TIFF format, and TIFF versions of certain Excel files can be difficult to understand as rows and columns often break across TIFF images. Protocols are addressing treatment of these file types, whether that be producing them in native format from the start, or providing a procedure that allows a party to request certain files that were produced in TIFF format to be produced in native format.
Color Images. Most protocols stipulate that the TIFF images will be produced in black and white; however, some protocols have begun to recognize that color images are sometimes required for a party to make meaningful use of a document. These protocols typically include a process by which a party can request certain TIFF images that were produced in black and white be produced in color in situations where color is necessary to understand the document. Protocols may shift the cost of color production to the requesting party in this situation.