In October 2023, BRG hosted an in-person event titled “Negotiating Better ESI Agreements.” The genesis for this event was one of the most important findings in BRG’s 2023 AIML report: that ESI agreements are, by and large, poorly constructed. (Take the survey for our 2024 report here.)
Martha Louks of McDermott Will & Emery; Angela O’Neal of Nextra Solutions; and Hitesh Patel of Cooley, joined Rich Finkelman of BRG to discuss this important topic, with some excellent insights shared by all.
Very quickly, some common themes emerged. Collaboration and communication between parties was the most discussed, as the world of modern data and the variety of sources can complicate discovery immensely—and not all variables are known when protocols are first established. Short message data and collaboration tools were also discussed, as the complexity of these sources—compared to email, in particular—many times requires the involvement of someone with technical expertise. The event closed with a discussion around TAR and AI and the role they play in ESI protocols.
Today, we’re sharing some key insights from this conversation with readers of The Relativity Blog. The information should be helpful for anyone trying to simplify and streamline discovery protocols in negotiations with opposing counsel.
Consider Strategy & Customization
“Don’t use the same formula for every single matter. At some point, an issue in the case is going to lead back to the ESI protocol.”
- Reusing previous ESI protocols without strategic consideration is a common pitfall.
- It’s crucial to have a good rationale for why a specific protocol was chosen, as it may be questioned months or years later.
- Customizing protocols based on the specific case and client needs is essential.
The use of templates—and reuse of work product—in litigation is common. When time is fleeting, it makes sense to use a version of a document which was used before with success.
However, it’s worth noting that all of our panelists told stories of when ESI protocols were reused without modification or consultation with an expert, to negative outcomes. The consensus was the following: have a strategic reason for using a specific ESI protocol and, if reusing one from a previous matter, customize it to your current case so that you can protect against the unique needs of the matter.
Lean on Communication & Collaboration
“Flexibility is so important!”
“Leave language for ‘meet and confer.’ Collaboration is key to avoiding conflict.”
- Open dialogue with clients from the outset can prevent later issues and better tailor the ESI protocol.
- Building relationships with client IT departments can yield long-term benefits, particularly as case requirements evolve.
- A “meet and confer” strategy is advised for collaboration to avoid conflicts, as cost and scope can escalate with newer technologies.
The idea of open communication between client and case team, and then case team and opposing parties, seems like an obvious one, but isn’t always the case, as the panelists pointed out. Litigation moves fast, and carving time for meetings between multiple stakeholders within a client—e.g., in-house counsel, IT, et cetera—isn’t always an easy thing to do. Still, getting those meetings set up and establishing a good relationship between the case team and client IT will go a long way to ensuring that any protocol will address potential issues at the outset, or at least as many as possible at the outset.
Keeping the door open with opposing counsel to “meet and confer” after initial protocol agreement will head off cost and scope creep as new variables are introduced and newer technologies present themselves. Knowing all those variables at the outset of a case is ideal, but it’s just not always the case, and keeping the lines of communication open will help minimize downstream cost and risk.
Confronting Modern Data Challenges
“No one is thinking about how to approach search terms regarding short messages or modern data. The functionality of your terms probably doesn’t correlate to email.”
- Simple email protocols won’t suffice for modern data types like short messages or collaboration tools.
- Getting a technologist involved, especially for handling short messages, is highly recommended.
- Flexibility in protocols is key given the fast-changing landscape of data types and tools.
- Communicate and establish a data standard the parties can trade, e.g., Relativity Short Message Format (RSMF).
The pandemic accelerated everyone’s use of communication alternatives to email, whether it was Slack, Teams, Zoom, or any one of the myriad ways we can communicate now. The speed at which this happened has put pressure on the collection, review, and production of these data sources and, as a result, on accompanying ESI agreements.
All sorts of new challenges have since presented themselves. Will the search terms the parties have negotiated work on short message data like Slack and text messages? What data standard should short message data be produced in? Is short message unitization something to be considered? All of these questions and potential unknowns point to the need for a technologist to assist and protocol flexibility, as the communication tools we use rapidly evolve.
Using Technology-Assisted Review (TAR) and AI
“I highly recommend changing ‘will hit a recall target’ to ‘will seek to achieve a recall target.’”
- Having predefined recall targets for TAR could be problematic; flexibility is advised.
- Conflicts in ESI agreements most commonly arise around TAR and email threads during protocol discussions.
- Often, the presence of TAR in protocols becomes more about strategy than about tactics.
The use of technology-assisted review (TAR) in litigation is becoming more and more prevalent, to the point of ubiquity. The technical underpinnings of TAR, and the associated workflows, make weaving it into an ESI protocol challenging. Every panelist discussed that TAR discussions in protocol negotiations were often more about strategy than tactics. Very important points were also made about agreeing to restrictive language around TAR, as protocols are written and agreed to before the TAR process usually starts, and there are no guarantees around recall targets parties seek to achieve.
The importance of strategic foresight, client customization, and staying ahead of modern data challenges can’t be overstated. Therefore, you should actively engage with clients and technologists from the outset to ensure a defensible, flexible, and cost-efficient ESI protocol. This will not only stand up to scrutiny down the line, but will also allow for adaptive measures as case dynamics change.
Alex Jacobs is a director at Berkeley Research Group, LLC (BRG), a global consulting firm that helps leading organizations advance in three key areas: disputes and investigations, corporate finance, and performance improvement and advisory.
