Part I of this post discussed some recent trends in electronically stored information (ESI) protocols and what those trends might reveal about a case or attitudes of litigants. Part II addresses additional trends that relate to some of the more prominent subjects covered in protocols.
De-duplication. Most protocols now at least allow for the possibility of using de-duplication, although some protocols have gone as far as to mandate its use. Because de-duplication can significantly reduce the size of a production, parties are usually mutually agreeable to its use. Protocols that allow de-duplication may include a required process for de-duplication. The process can be detailed, including such information as the hash values that must be used, categories of documents that may be de-duped (such as emails) and those that cannot, and the ways in which the documents can be de-duped. Protocols permitting de-duplication may also require the inclusion of certain metadata fields, such as “All Custodian” fields that identify each custodian that possessed a copy of the document.
Threading. Many protocols allow the producing party to take advantage of threading technologies, which select the most inclusive email threads for review and production. Threading can have a significant impact on review volume and reduce unnecessary duplication and expense.
Privilege. More and more protocols are identifying categories of documents that are presumptively privileged that need not be reviewed or logged. This is sometimes referred to as a “bucketing” approach. The idea is that certain categories of documents are almost certainly privileged, such as communications between a party and outside counsel or work product created by outside counsel after commencement of an action, and therefore it is not worth the time or expense to review and log those documents. Some protocols detail specific categories that do not have to be reviewed or logged, while others allow a party to assert that a certain category should not be reviewed or logged triggering a meet and confer process among the parties.
Agreement vs. Order. In some cases, the ESI protocol is a written agreement between the parties and not an order entered by the court. This allows the parties to amend the agreement without having to move the court to issue an amended order. However, an agreement does not bind future parties that are not signatories to the agreement, whereas an order likely does. Therefore, parties that anticipate that additional parties may be added to a case in the future should strongly consider requesting the court to sign and enter the protocol.
Culling Methods. Many protocols include technology assisted review (TAR) as an accepted culling method, as well as other traditional means like search terms. Parties are beginning to allow for the possibility of using TAR to at least supplement a traditional linear review. These provisions vary in detail, and some require the parties to collaborate on the TAR process. As the reliability of technology improves, litigants and courts are becoming more comfortable with allowing a producing party to use TAR. A common thread regarding culling in many protocols is that the producing party is allowed to select its preferred culling methods and disclose the same to the receiving party.
Protocols entered in complex litigation are typically heavily negotiated as they can have a large impact on the burden and expense of discovery. Most protocols are trending towards permitting use of technologies to help reduce redundancy and expense, while still providing the universe of relevant documents.