ESI Protocols: Own It!

Key Takeaways

[Music] hello and welcome to another episode of ecovery chicks the podcast about all things ecovery and legal Tech hosted by two gals who are embracing the slightly unhinged this week uh anyways we're your hosts that's Bri and that's Angie and today besides embracing the unhinged apparently we will be talking about ESI protocols we've been promising this for a while actually so long it's come up literally on every single episode that we've had as part of our edrm Series so we're excited to finally be talking about ESI protocol but before that you say unhinged do you yes just a bit just a bit okay what are you up to Angie so I've been solo parenting a lot lately John's had a lot of work travel my work has been busy and I have found my tolerance level for not very important things is just totally gone there's a single dish in the sink and I'm just like well my whole life is screwed I can't handle this it's too many inputs but the thing I did this week that was a little unhinged is I was mildly annoyed at my outfit on Tuesday just it just sort of bugged me I was like this is not inspired and so I booked a 5H hour stylist appointment at my house they're G to come and like look through my whole closet talk to me about my life and like what I need out of my wardrobe oh my God and give me like a gap fill list yes it's some fabulous man named Colton is coming to just like educate me for five hours this sounds like queer like a queer ey episode it's I hope it is I hope it is I hope the Fab Five show up at my house and I don't even know and they're like listen this [ __ ] needs help I'm not going to ask you how much this costs cuz I can already tell you that I will freak out my head will spin around in circles on my shoulders too much too much but I do need to understand like what in the hell is he gonna do for five hours Angie that's five hours that's like a whole day I mean he would be done in my closet after 30 minutes well and then I started thinking I mean first of all I don't know what we're going to do for 5 hours but will report back but then I started thinking I was like okay do we need snacks also like where is he going to sit like my closet's in my bedroom we don't have a chair in the room like is that weird like do I need to provide water should I put a little table down there and then I was just like you know what he's a pro this is literally his job I'm sure he's got a system I'm sure it's G to be fine but my type a brain was just like wait okay is so hilarious well first of all I'm pretty sure you are going to have to have snacks and then for such a bougie freaking activity you what are you gonna you can't like bust out smart pop maybe real champagne you have to have yeah or prco and you might have to have like a chuder board situation oh I don't know or maybe you have to go to Trader Joe's and buy those cute little like spanic copas oh my gosh I mean you know one of my favorite activities is going to Trader Joe's no list just Vibes oh my that's dangerous you know I do things that are extra but my extra is on a completely different level mine's like you know what I I love cool matches I like candles and so I was like you know I haven't had really cool matches real ones that made out of wood in a long time and so I got on Amazon and I found these cute matches they're in this really adorable little container and they have a little strike thing on the bottom and the match is super for long so you can smell the wood burning as you light your beautiful candle and that's a whole thing for me that is like a $ five investment that is a Mini Spa that is mat smells so good they smells so good oh my well I first of all you need to take before pictures of your situation and after pictures so we can compare I feel like if they're if they're noteworthy enough maybe we should put it on our website to oh I will I mean and I think that this the thing about this that makes it extra for me is that I was just a little irritated at my outfit on Tuesday I don't know why I wasn't feeling it and all of a sudden I was like you know what I need to do overhaul my entire life that will make me feel better I do something similar not with outfits but with organizational projects the other day I couldn't find some notes that I had taken during a meeting and I was like oh this is not acceptable at all I need to have all my notes they should be organized what is wrong with me I can't keep my [ __ ] together oh my God I literally had little meltdown and then I was like that's it and within 4 hours I had moved all the furniture in my office around completely different view rewired everything that was annoying to me in my office like I took care of I made a pile of crop to donate that my husband then poor guy came home from from work he was like what yes that's what happened all because I couldn't find my stupid notes I do the same thing like one little thing irritates me and I'm like that's it overhaul everything there's a fork on the kitchen counter and all of a sudden you have polished all of the cabinets and you're standing on the counter is dusting the top of them should just Breeze right past that move this along start talking about ecovery I guess that's why we're here so like Brie said today we are talking about ESI protocols we've been promising this forever and we do deliver on our promises this one feels a little belated but we do deliver ESI protocols they are a set of guid gu lines and agreements that dictate how electronically stored information or ESI is handled during the discovery phase of litigation they can cover everything from how data is preserved how it's identified processed collected reviewed and produced and everything in between ecovery becomes more and more complex which is why it's more and more important all the time that we have ESI protocol so that we have something that both parties are living by it's like our road map how we're agreeing that we're going to take this journey together without these clear protocols the discovery process can become extremely chaotic and it can also lead to very costly disputes it can also stand in the way of efficiency it just causes delays within the litigation process and it opens everybody up to sanctions you know and as we're talking about ESI protocols which obviously this episode is all about I do want to just bring to that there are some ESI is protocols maybe I should call them but there are there are things like Discovery orders that you might hear about or there are protocols within local rules or there are standard specifications that are issued out by different organizations like the Department of Justice the doj for example all of those Protocols are kind of in the same light as the ESI protocol that we're talking about today although you might not be following what's technically called the ESI protocol might be a discovery order it's all in the same vein all the same flavor here's what we're going to cover today we are going to talk about the historical development of ESI protocols how they became a thing we're going to talk best practices for negotiating them we're going to talk maintaining the scope and proportionality how you negotiate those things and assess those things and then we're going to move on and talk about the essential role of data privacy and security and how you factor those into your ESI protocol and finally we're going to wrap things up by talking about the influence of emerging Technologies like AI before we get too deep let's talk about the history shall we and I just you know I think it's very rich that every time we have to have a historical reference in any one of our podcasts the old G is the one that's like back in the old days is it okay okay we'll fix that also it's wild to me that we start our our like history lesson in 2006 I know and that's just not that long ago like I kind of still remember 2006 anyways so speaking of 2006 that's the year that the F frcp refined the scope of discoverable material adding Federal rules of civil procedure that's right thank you councelor yes you're welcome FCB adding in the phrase electronically stored information thus ESI so Angie is going to discuss that in a little bit more detail here in a moment but initially the challenges that legal professionals faced all became apparent as things became electronic so think about it back in the back in the old days when we had Discovery we were dealing with paper right I mean we were physically going through box of paper and doing things like making copies of those well when copies and physical paper became to burden some we started to get smart and we said hey you know what let's start scanning this stuff if we can scan it and pop it on a floppy disc or a CD that's even more efficient and so we started doing that quick question from the millennial here uhhuh what's paper you know what paper is you might even have some in your closet ask Colton back to the paper and the scanning and producing on floppy discs and and CDs when we started doing that we quickly created a monster because now we have all the scanned data that doesn't have any kind of reference point to it it's literally just a bunch of scanned images and it really was no better other than the fact that we could put it in our pocket and instead of having to use 10 dollies in boxes it was still just as burdensome to review so it became the wild west we started to decide as an industry you know what we should do we should as we're Imaging all this stuff which people used to call Tiff so when we thought we were super cool we'd be like hey yeah so I'm gonna go get this Tiff real quick I'm going to call my vendor and call them in and say I need this Tiff and blown back that would if I get a dollar for every time I said Tiff and blown back which means I need you to image this to make it into an image that I'm going to produce it but then none of my attorneys actually trust Electronics yet so we're going to have to blow back times 10 or however many attorneys are there so that we have copies and paper of what we are producing yeah can I just say I think we should make more verbs out of objects like Tift like I Tiff that right like yeah I like it well we do that with PDF too we yeah we PDF something yeah you know like I If somebody pisses me off like I might water bottle them oh God watch out as we started tipping and PDF we realized that it really made more sense if we could have something called a load file that would come along with those images that would have some information like who created this document you know what metadata is if you've been listening listening to our podcast when was this document created was the what is the name of this document was the title of it what is in it what what is the content so we started doing things like ocing our Tiff images and providing load files but we realized right away that ecovery was a legal baby it hadn't really it was just born and the software that was out in the market wasn't exactly consistent wasn't exactly complete and everybody seemed have their own solution of how they're going to go about doing things so if I gave you a load file with all the way that I decided to produce the data whatever you're reviewing it on might not be accepting that and I might have to go to a vendor a special expert to get everything reformatted so that my tool can accept what you're trying to give me and that was chaos so it started us thinking about things like ESI protocol can we just agree that we're all going to do things the same way so before I get your data I actually know what's coming and I know I can look at it that would be amazing and then we started getting all sneaky right we started when people when counselors found out like oh hey if we produce things a certain way it makes things real hard on the other party and so we started dumping data in a way that was hard to analyze or digest well that also was is addressed an ESI protocol as we started getting smart and strategic about the way we were producing data we decided as an industry it's probably most fair and ethical if we all start on the same page with when we enter into litigation in the first place not only is that the ethical way of doing things in my honest opinion it actually will save us money and time in the end so we came from a world of the Wild West with those unwieldy boundaries and we established some standard laws thoughts and procedures and ways of dealing with the mountain of data that we now deal with in litigation currently Angie I know you're dying to talk about the FCPS or the federal rules of civil procedure an ESI protocol so I will turn it over to you oh I do love an F frcp moment let's start with a Baseline and then we're going to talk about two amendments to the FCPS pre 2006 like bri said the way that parties and ation handled ESI was inconsistent and just big chaos energy so there was a real need for standardized procedures to address the way that parties handle their ESI and what the cons consequences should be for failing to do that properly enter the 2006 amendments to the FCPS now there are a bunch of them and I'm going to hit two key ones the first one is Rule 26 B2B this deals with accessible versus inac accessible ESI and the rule the 2006 Amendment introduces the concept of reasonably accessible ESI versus not reasonably accessible in the paper days you know you just didn't have the same sort of backup tape slash cloud Solutions slash dat that people don't want to have immediately at their fingertips so they store it in kind of weird places maybe off- Prem places and so the 2006 rule 26 B2B amendment is supposed to address those concerns the other big 2006 amendment is Rule 26f and this is the rule that establishes the requirement for a discovery planning conference at that conference you might hear these colloquially referred to as like we're going to do our 26f conference we're going to go to our rule or rule 26f meeting during that conference the parties must discuss issues related to the preservation and collection and production of ESI so this amendment encourages early engagement on those ecovery issues and tries to get everybody rowing in the same direction early on in the litigation process around 2006 people started recognizing just how expensive and cumbersome burdensome and unwieldly ecovery could be and so this 26f conference is supposed to get everybody started off kind of on the right foot those are the two big ones from 2006 the next big slate of amendments comes in 2015 so I'm going to talk about two big amendments from 2015 again there are a bunch this isn't supposed to be comprehensive first one I want to talk about is rule 37e this amendment enhances the focus on sanctions for expolation under this 2015 Amendment the F frcp introduced a two-tiered approach to sanctions one if the ESI that should have been preserved is lost and it cannot be restored or replaced the court can impose measures no greater than necessary to cure that prejudice so that's number one in this two- approach number two if the Court finds that the party who spoliated that evidence acted with an intent to deprive the other party of that information they can impose more severe sanctions like an adverse in inference instruction or dismissal of the case and we do see this playing out like in the case slot anyways that's the first 2015 Amendment second one is Rule 26 B1 which talks about the concept of proportionality in Discovery and this is a big one this amendment reinforces that concept of proportionality and emphasizes that the scope of Discovery should be quote proportional to the needs of the case you will see that language pop up in so many Discovery objections in so many Discovery responses because it is such a big concept when courts are evaluating whether Discovery is proportional to the needs of the case they might consider things like the importance of the issues at stake the amount in controversy the parties resources the importance of the discovery in resolving the issues and whether the burden or or expense of the proposed Discovery outweighs that's likely benefit the Court's going to look at all of those and they're going to do what's called a balancing test and they're going to decide based on that balancing test by looking at these factors and maybe others depending on the case whether that Discovery is warranted so this change this 2015 amendment to rule 26 this emphasis on proportionality all of this was designed to curb the broad and burdensome Discovery requests that started happening and really encourages the parties and courts to focus on obtaining the most relevant information in a cost-effective matter because at some point you know the amount of data out in the world just started blowing up right and parties wanted all of it and weren't really managing their requests in a way that was cost- effective and proportional and so this amendment really targets that it's a big one it's one of my faves my personal faves those are some amendments that happened in 2006 and 2015 let's switch gears and Bri what are some technological advancements that have happened since then this is probably a no duh moment for a lot of people that are listening but we all know that you know there's been technological advancements but because of all of these advancements it's reshaped the world of ediscovery and it continues to and as fast as we grow with technology so does the world for ecovery and we have the internet of things that was a topic that we've covered in a previous episode all of the things I mean we talked about your tea your teapot your refrigerator your your your rings you know all the things that have technology and have data that could potentially be at at issue in a legal proceeding as those things multiply so does the interest to capture the data and the information on those devices so it can quickly grow to a place where does it even make sense that we Tred to cast this wide net in terms of cost or ability that's something we got to ask ourselves so the scope I guess is really what I'm talking about and and we'll talk a little bit more about scope in a moment but it's so important that we agree from the very beginning like how much is too much you know we're considering this case and all of the situations involved in it I mean is this a case where it's no holds barge wait is that the right way to say that no no holds bar it's a wrestling term actually look at that even old people can learn things um it's important to at the very beginning to establish what those boundaries are what's off limits is this the type of matter that's going to require us to go to the ends of the Earth to find every single piece of data or can we really just limit it to email yeah but I know that being in the cloud what does that even mean back in the early days of of Discovery there was no clouds yeah and that has totally changed things that cloud computing and remote work I feel like are two big ones both of those things make ESI management so much more complex and so you might need protocols that address issues like data sovereignty crossborder data transfers use of thirdparty platforms you might have to have an MDM software solution mobile device management software solution if you have a BYOD policy at your organization we're just collecting data in a different way from different sources than we ever have before and because of these wide variety of locations where we might have data that's relevant we have to consider data that is on Prem in or meaning on premise or in the cloud they might be data from file shares like who uses file shares anymore networks we might even be talking about forensic images of devices uh we still talk about paper even though Angie doesn't know what it means they're actually people that have valuable information on paper with the internet of things and with all the ways that can message one another in those message apps or emails and all the platforms where we can do all those things these are all the locations where we could potentially be gathering relevant data so standardization is something that we've talked about in an episode's past that's something that's defined within that ESI protocol that's going to help us bring all those data sources together so that we're able to analyze them at one time in an efficient way and find the relevant or resp responsive data and our ecovery tools themselves have become more advanced you know back in the day if you had an attachment to an email it was like fancy pants if it came right after the actual email that was imaged I mean there I can remember getting documents back from a vendor that were like well the email is like document one and then the actual attachment that goes with it is document 50 and then in between is a bunch of other emails what goes with what a nightmare we've gotten to be more sophisticated now with our ecovery tools and we can put together things like attachments and families and we have complex searching that's available you know which which I probably sound like such a grandma to some people or listening who are like d That's always been here what the heck but no it hasn't and there's those of us that understand you could only do simple searches and then you had to go through and review so much but then we've also got have ai and advanced processing steps that we've never been able to do before things are no longer all on how do you say it poier paper paper paper that's right you are ridiculous all right so we've talked about kind of where ESI protocols originated from we've talked about how technology itself has grown and evolved but let's talk about negotiating those ESI protocols what are some key considerations and best practices and let's start by talking about the Essential Elements the key elements of an ESI protocol cuz a lot of them you're going to tailor them to fit your individual case but a lot of them have some of the like same Core Concepts think about it like this is a chassis of a car and you just build different models on top of it to suit your needs what you things that you might want to address data preservation how and when should data be preserved to prevent spoliation you going to collect to preserve Preserve in place or you going to do it differently for different source say who are your custodians going to be how many custodians are you going to have you know some jurisdictions the Western District of Washington being one of them will have like a template ESI protocol for you to use that will specify the number of custodians another element you might want to consider including is data collection what methods and tools are you going to use I'm going to do a call back to our modern attachments episode with Doug Austin from a little while back where we talk about why collecting those hyperlink files those hyperlinks modern attachments whatever you want to call them why those are so problematic and for different data sources you might have different capabilities and limitations like you're collecting those from Microsoft sources will look different than Google so you might want to address those sorts of things and any other data collection issues that you see also processing the handling and filtering of data are you how are you dding are you duping across custodians or the matter globally you know there there are a million in one different processing things that you can address in your ESI protocol also data review are you going to use an eai are you going to use technology assisted review or tar are you going to use Search terms if so you might need to negotiate those and then finally you might want to include something about data production what's your deliverable is it a load file how are we producing everything like are excels coming in Native format are emails coming as tiffs you might want to spell those out as well in your ESI protocol those are some Essential Elements you might want to include but Bri what are your thoughts on negotiating those yeah well something we talked about with our Good Friends Dan and Nate they were very adamant so we did an episode with them talking about production which is a lot of times when we see the fruits of our labor with the ESI protocol because there's a lot within what we agree with agree on in the very beginning that determines what it looks like at the end and so something they were adamant about and I totally agree the sooner that you can get everybody involved and on the same page the better you will thank yourself in the end and don't hate me but I'm going to tell you something that's a tip that's going to sound painful but you want to have a meeting before the meeting what do I mean by that absolutely first of all Angie was referring to rule 26f earlier in our FCPS this is a conference that is called on where both parties get together and meet and confer which is a lot of times is what we are calling that meeting all parties are coming together to agree on how to proceed with handling their ESI so in the meet and conver you want to have already met and conferred with your own group of peeps that's what I say a meeting before the meeting before you go into your meeting with opposing Council or councils you'll want to have talked to everyone and I mean everyone that you can think of that's involved because you're going to want to talk to the subject matter experts within your organization you're going to want to talk to your eisc Discovery folks or your legal Ops folks that are actually going to be carrying through the handling of your data you're going to perhaps want to talk to it or to a forensic expert or somebody who's technically going to be handling devices or capturing data you're going to want talk to your reviewers or your paral leals or your Associates or your thirdparty reviewers you're going to want to talk to your counil of course and any other experts that you might bring be bringing with because every single person in their role is going to be impacted by what you agree in the ESI protocol it's super important that you number one share that draft of those ESI protocols with all the folks get all their feedback make sure are we agreeing to things in here that we can actually do does this make sense are there things that I'm missing and then it's a group project it is it's everybody's favorite but that's super important so I would say the earlier we can meet the best and to really think about the scope of people who are involved what else would you say is a good best practice for negotia ESI protocols I feel like one of my North Stars when I'm doing this is I want to strive for comprehensiveness and flexibility when we talking about that chassis I want to make sure that I'm hitting all of these key points but then also maintaining some flexibility there right like I'm I don't want to impose super Draconian policies for say like a search term that doesn't work well right like that's not a a good use of anyone's time or resources you want to cover everything provide some guidelines but maintain a little bit of flexibility so that when you get into the weeds of your data like if you need to switch things up you've got some guard rails for doing that you've got some flexibility for that also one other thing I would say is a phased approach can be a really good idea especially if you're dealing with a massive volume of ESI and so a phased approach is you do it in phases as the name suggests but your initial production might be limited to the most relevant the most material data with the possibility of expanding the scope if necessary so maybe you collect from like your key custodians first or your key data sources first and then assess that data and then decide whether and how much to expand the scope of Discovery beyond that well another like big one for me is transparency and cooperation transparency between the parties is a big big deal courts often look favorably on parties that collaborate don't show them where everything is hidden right that's not what I'm suggesting but I am suggesting be upfront especially about the limitations of your data if you know that you cannot collect a certain thing and that that's probably going to come up in the course of Discovery flag it early you know if that works with your strategy or whatever but generally flag it early make it known and put it in writing definitely put it in writing because you want that transparency courts are going to look really kindly on that and it will set you up for Success when you're negotiating with the other party also cooperation in general it's not worth anyone's time for you to go in there and just be a a jerk to the other party like I had one of these conferences once one of these 26f conferences that was 10 hours long and they we hired a court reporter like the other side insisted on hiring a court reporter so there were like 12 lawyers sitting in a room for 10 hours with a court reporter recording everything that we said and it was miserable and everyone hated each other by the end of it and Discovery was way more expensive and burdensome than it needed to be because there was one party that was just really cantineras cooperation is important it's going to save you time and money everyone's going to be happier it's going to be smoother sailing so those are I think those are my two big ones yeah along those same lines too you don't really want to project to the court that you're not all playing nice with one another and you're making things difficult because the moment the court has to step in and try to clarify ESI protocol or or have to get involved with e you know arguments regarding the compliance with ESI protocol is the time that they get super pissed it's like if you have two children and just gonna say something about Toddlers and you well I mean and it could go for tween who knows true but yeah you've told them both don't get me involved if you get me involved you're not going to like it you guys need to figure it out and I can't tell you how many times I've said that to my son and you know lo and behold come to me come to me and tell me you're bored or you can't figure out what to do on your video game like you are not going to like the baseboards you're about to clean I can promise you that so that is how it works with the judge as well we have talked about some you know best practices for negotiation the next part of our conversation involving the ESI protocol is really surrounded in scope and proportionality so we promised we'd talk a little bit more about that so scope what does that mean well it's really kind of like that net that we keep saying that we're casting right how wide is the net how far do we want to reach to gather in that potentially responsive data this is important to consider when you are drafting the ESI protocol because you guys are all going to agree on how wide or small or little or narrow that net needs to be when we are talking about scope we are talking about who are the people the people are the employees the custodians how many of them do we need to have and who do those people need to consist of where is the data if I'm going into an ESI protocol meet and confer with opposing Council I need to have already vetted out like who are my peeps where are they saving stuff because maybe they're saving stuff in wackadoodle places that are going to be super hard for me to get to and expensive or maybe they have so much stuff that I know it's going to be impossible for me to figure out what is even relevant or take me a million years to get to the to the bottom line of what's relevant think about how we can Co down that's a famous terminology call love a calling yeah we do I want to know where that word came from that's a maybe another subject for another day feels like farming I don't know I'm making that up I have no idea oh my God ESI protocol came from paper and culling came from farming okay but we're really going to need to think about how we're going to Cull down or narrow down the scope of what is deemed relevant and we can do that in a couple of different ways like using keywords that we're using to search through our data using date ranges when we know that hey everything within this time frame is relevant and everything else we can kind of throw out the window so other things that can help you define the scope of your data are things like jurisdiction and why do I say that it seems weird but you need to understand if your data resides in a foreign jurisdiction there may be laws and regulations that prevent you from getting that data or make it really hard for you and expensive for you to get that data there might be regulations about what you're able to produce even if you are to get your hands on data also data retention that's something to consider what are your internal policies with data retention is the data even there that you're saying that you're going to produce there are challenges that we face when we're trying to manage the scope of our data particularly in complex cases that are involving lots of different data sources a ton of data because the more data the more sources that are involved the more people that are involved and the more time that's required to get through that data so you're going to have to have some sort of normalization process which will be like processing your data into an ecovery tool for example you're going to need to consider how you're going to preserve data if you can preserve data and how you're going to collect it and whether or not that may include the involvement of outside parties every single one of these components plays into your scope and whether or not it is in your best interest to agree to those parameters in your ESI protocol plus one to all of that also another good way to think about this just like an overarching concept of scope management is you want to balance thoroughness and efficiency the more efficient you are the less thorough you are the more thorough you are the less efficient you are and you want to find that happy medium and like read that needle so you want to align the scope of your case to the specific needs of that case and the facts of that case don't collect from random custodians first collect from your key ones that kind of thing so with that overarching Concept in mind this efficiency balanced against thoroughness proportionality I think is really what we're going at so Bri what are your thoughts on getting to a proportional ESI protocol when we're talking about proportionality we're talking about is this this really worth our time and investment that's the question that we're asking is it really required of my company to uncover every Rock to boil the entire ocean or are the requirements of this matter really just that I need to be able to find strategically certain information and produce that and that will meet the requirements of what's being asked of my company in this matter those are the kinds of question questions ultimately that you're trying to answer so there are some ways in which we can gather a better perspective on proportionality one of those is through a process that we like to refer to as early case assessment some people call it ECA but what that is is essentially using the metadata that's in your data to help you have an understanding of what responsive data actually resides there and what does that Universe look like so for example if I know I have a bunch of data that somebody has stored on a network share or a box.com account or maybe there's several people that have emails back and forth with one another that we know are responsive to a matter what are some things that I could run through that data I.E keywords or phrases that would help me pick up on relevance and understand exactly what the scope is of the relevant hits if I'm in litigation about faulty matches that accidentally burned my house down then I might be looking for matches purp purchases for matches on Amazon these are keywords that I could run through my email to find relevant correspondence or data pertaining to my purchase of the faulty matches very simplistic example but I think you get my gist early case assessment is when we're doing this before we've actually imaged and processed the data for production so we're trying to save on cost from processing those images and storing those images and doing our early case assessment so we can have a better idea of really what's in scope for us to actually go through and collect an image process Etc you can use tools to help you perform early case assessment there are ecovery tools that have this built in that help you you can also do things like there's ecovery calculators that will help you plug in the results of your early case assessment into a calculator so you can do things like hey if we have this much data and we are involving a third party to review this is the cost that we're looking at you can also use AI to help you there's things like concept clusters and insights that can be generated through AI that will help you have a better understanding of what really resides in your data you can also use Smart labeling do a sample set of hey these are the things that I'm looking for that are relevant I'm going to create a sample set and let my smart labeling make some suggestions about other data that's relevant those are some tools and some ideas that you can use to Cull down your Universe of data so it's more digestible and carrying through with your ecovery process as we're talking about ESI protocols and going beyond the scope and the proportionality that we just discussed we start considering data privacy and security those are two issues that actually weren't a consideration back in the early days anything that we're agreeing to do with the way that we're producing data will be in a way that can protect us so that we have we're following proper safety measures and we're protecting ourselves from misusing personal information or data that's covered under some sort of privacy regulation and I want to make sure as I'm I'm agreeing to our ESI protocol that I can go and make the redactions that I need for personal information both within my images and within my metadata all right Angie do you have anything else that you want to offer up in terms of SEC thoughts on security two things one there are ways to protect data and ESI protocols you can specify how you're going to integrate security measures and then do that throughout the the ecovery process you can also discuss things like encryption or file transfer protocols access controls things like that you can account for all these things in your ESI protocol as the way to safeguard some data and then the other thing I want to flag are protective orders and confidentiality agreements you can also agree in your ESI protocol to use these so a productive order is something that you go to the court and you get and it basically specifies when and how you can use data a very typical example of this would be like party a will produce data to party B party B will destroy that data at the conclusion of this case we'll only use that data within the context of this case will not disseminate that data to any other party affiliate or anything like that that's a pretty common type of protective order then the other thing is confidentiality agreements and that's where parties agree that certain data will be classified in specific ways and used in specific ways to the case so like a document marked confidential attorney's eyes only only the lawyers would be able to look at it and not the parties themselves something marked confidential might be you know anyone within the lawsuit can look at it but you cannot disclose it to anyone else without prior written approval or notice or whatever it is so those are two ways you can do some some dat dat security stuff or in ESI Security stuff in your ESI protocols I think that those are my two thoughts on that bra should we close out the episode talking about some important tips and tricks yeah just to kind of sum it all up I feel like we have explored several different areas of importance when it comes to thinking about the ESI protocol what needs to be in it and what your role might be in it and things to consider so in summary I would say one of the biggest takeaways is start early and be inclusive make sure that you start right away as soon as you are issuing that legal hold you start thinking about okay who all do I need to include in that meet and confer or at least in a prep meeting before a meeting before the meeting to help advise me so I am equipped to to handle the meet and confer who are all the parties need to be involved and get them involved from the very very beginning in a panel earlier this week I I did a a talk for aseds and it was discussed that we need to be careful about over promising in an ESI protocol because I think a lot of times we get caught up in hey make sure you include this and make sure you include that and let's think about all the things that we want to include and if we don't actually do what we say were're going to do in the ESI protocol the other party can call us out on it and then it looks like we withheld something so we need to make sure that we're including all the details but don't get yourself so pigeonholed that you don't have enough wiggle room or it looks like that you have tried to withhold something and that wasn't really your intention unless you're in the Northern District of California or elsewhere where courts have sort of reversed course on that and thrown the industry into turmoil did you see that there's a case in the Northern District of California where the parties went to the court and they're like hey just kidding we actually can't collect hyperlink files like we said we could but it turns out like we totes can't and the court was like oh yeah okay I mean I'm I'm paraphrasing but then some of the commentary on it was like this is a huge departure from Decades of Kes law saying don't agree to something you can't do otherwise you'll be held to it or sanctioned yeah anyways plus one yes and to everything that that Bri has said I want to close us out talking about AI for just a second because depending on your jurisdiction there might be regulations that apply to the way that you use AI uh there might be regulations or case law or like a statute you know to just make sure you know what laws apply to you when you go to assess whether to use Ai and that might be like Court specific it might be judge specific maybe you're in front of a judge who's super friendly to the use of things like tar and maybe you're in front of a judge who really isn't or maybe you're in front of a judge who's never ruled on it doesn't have a ton of experience and you're going to have to educate them I think that would be my AI takeaway for this that's a great takeaway I would just say one other thought here in thinking about ESI protocol you know it's coming down the pike you know at some point there's going to be litigation in your organization and you're going to go through this exercise and you're going to have to think about the scope and the proportionality of all the things that you have and how to deal with them you can start being proactive today and do things to help minimize the trouble the risk the time the money involved with this process a couple of things that you can do today be responsible about your data clean up you know clean up after yourselves people close out those legal holds that don't need to be active anymore Purge the data that you don't need anymore make sure you have great retention policies that are actually being followed and that you're actually deleting the data that you're supposed to have already deleted you can also start in advance thinking about the policies that will affect things like that personal information what is in your bring your own device policy what are your employees agree to when they are using a company device and in terms of their own personal information what are they allowed to do and what are they not allowed to do and how can you regulate that activity so you don't have an abundance of data to deal with or an abundance of personal data to have to deal with I hope that we have done a sufficient job to walk you through what is involved why it's important it is one of those things that really touches on every single aspect of ecovery so it's something as as you're going through your ecovery processes and you're like man next time we never need to do fill-in the blank that is something to write down on your ESI protocol checklist to make sure you don't agree to the next time around well I think that brings us to the end of the show thank you so much for listening don't forget to subscribe wherever you get your podcasts give us a festar review and tell your friends family and co-workers about us also please hit us up on LinkedIn or at our website ediscovery chicks.com with your thoughts questions and drink recommendations until next time bye bye [Music]