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Discovery is more than just a process for disclosing evidence to opposing counsel. I personally think it gets its name from the mental taxation that eFiling imposes: changing laws and strategic filing procedures become an exercise in personal development. I have an entire soundtrack of focus music  (here’s a sample) devoted to getting me through procedural mumbo-jumbo. On my desk sits the requisite greenery: a cactus plant to “lower stress levels” without threatening my macho sensibilities. In each and every case that gets eFiled, I discover stores of patience I never thought possible (see what I did there?).

Electronically Stored Information (ESI) is the latest in a series of painful revelations on the disorganization of the job. The overwhelming copies of email-after-inconsequential-email that inundate the office had led to a collapse in efficiency.

The truth is, discovery of ESI is incredibly complex. You have one of two possible outcomes:

1) Parties will agree that only some emails are relevant to the dispute at hand.

2) You will come to no such agreement. Your office will be overwhelmed with a barrage of email after email, with customer list after customer list. ESI discovery can only occur based on protocol – and depending on the protocol in place, it could take months at this point, and the endless back and forth will elevate your bill for heartburn medication to match your monthly retainer fee.

Take, for example, Progressive Cas. Ins. Co. v. Delaney, 2014. Progressive Casualty Insurance was under investigation regarding directors and officers liability for coverage under failed banks that had been taken over by the FDIC. Discovery for ESI began and after failing to produce ESI, the court filed a motion to compel. Progressive, under a strict manual review protocal for ESI, began reviewing 565,000 documents out of their 1.8 million document database.

The process was taking too long – so Progressive began using E-discovery software/predictive coding technology. This allowed them to eliminate over 400,000 documents. Unfortunately, Progressive did not request a change to the ESI protocol, landing them in hot water with the District Court. Progressive retroactively applied to amend the protocol, but having failed to be transparent in their activity, and because E-discovery software can be unreliable/unsecured, the Court denied their request (Thanks for JD Supra for court case details).

This left them with 565,000 documents to produce to the FDIC within fourteen days.

In the case of option two, your ESI discovery must be handled in such an agreed upon manner as ESI protocol dictates. Does your ESI protocol require manual, or predictive coding? ESI protocol is a changeable thing – but the proper steps must be taken before ESI can be handled in a different manner than is dictated by the protocol, and protocol varies on a per case basis – so you MUST pay close attention to the laws, and in the interest of deadlines, get that technology clause in place as soon as possible. Without ESI protocol that allows for production managed by technology, you could tie yourself into months of paperwork, damaging disclosures, and wildly mismanaged lawsuits. It’s more important than ever to make sure your E-discovery is properly managed. That just leaves me with one question, or caveat.

Are you prepared for your next ESI case? 

 

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