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The Dos and Donts of ESI DiscoverySusana Cruz  Hodge

When faced with the daunting task of engaging in and negotiating discovery of Electronically Stored Information (“ESI”) with your adversary, be mindful of these tips:

  • Do begin the process with a telephone conference.  Both parties’ ESI vendors should be on this call.  Together, they can identify data locations and engage in meaningful discussions about the platforms containing relevant documents and information. 
  • Don’t let your adversary ignore the parties’ duty to engage in ESI discussions.  Remind your adversary that the Local Rules explicitly state that there is a “Duty to Meet and Confer . . . and attempt to agree on computer-based and other digital discovery matters . . . .”  L. Civ. R. 26.1(d)(3) (emphasis added). 
  • Do remind a reluctant adversary that the Federal Rules of Civil Procedure compel the production of ESI.  See Fed. R. Civ. P. Rule 34(b)(2)(d) (“Unless otherwise stipulated or ordered by the court . . .[a] party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request[.]”).  Therefore, your adversary cannot logically maintain that ESI is not within the scope of discovery.
  • Do enter into an ESI Protocol.  Should you need a sample, feel free to email me.
  • Do get a general understanding of the relevant platforms.  For example, in a product liability matter, you should understand the searchable fields in the platform that contains warranty claims.  This understanding is essential when choosing search terms (more on that below).  You may be confronted with a platform that has fields for customer name, address, product model number, reason for call, and notes.  The obvious searchable field is the “notes” field, but this field may not contain any of your search terms and could even be left blank.  However, perhaps the “reason for call” field has a drop down menu and one of the categories fits nicely into your case.  For example, if your case involves moldy dishwashers, and there is a category in the drop-down menu for “mold,” you would request the records for all those entries.  If you do not fully understand the platform, and search only the “notes” field, you would miss out on relevant discovery. 
  • Do negotiate search terms once you understand the different platforms. 
  • Don’t accept the adverse party’s typical response that your search terms are too numerous and broad. 
  • Do ask for a hit report before negotiating your search terms and negotiate only terms that indeed result in too many hits.  Talk to your ESI vendor about the number of hits.  For example, in the moldy dishwasher case, key terms like “mold,” “rot,” or “mildew” may result in numerous hits, but these terms are hardly broad or generic, and thus are unlikely to produce false positives.  Sure, there may be a few emails between staff discussing moldy food in a refrigerator that needs to be cleaned out, but the vast majority of the hits are likely to relate to your case, so stand firm!
  • Do ask if the hit report accounts for documents or hits.  In other words, if the report shows hits, then the totals are skewed because one document can contain a search term numerous times.
  • Don’t fall into the de-duplication trap.  Make sure the hit report identifies unique hits (in other words, ask whether the results have been de-duplicated).  For example, the term “mold” may result in 50,000 documents and “rot” may result in 35,000 documents, but 40,000 of these documents may contain both terms.  Therefore, if the results have not been de-duplicated, a search term that initially seems problematic can actually become reasonable once the hits are de-duplicated. 
  • Do organize the search terms based upon hits.  If the top 10 terms make up a large percentage of the total hits, then start by limiting these terms.  It is possible that limiting these alone can bring the total hit count to a reasonable number and you will not have to negotiate the rest of the terms.
  • Don’t eliminate a search term simply because it results in too many hits.   There are many ways to limit terms so that the hits are reasonable, such as using proximity operators.    
  • Don’t immediately use proximity operators.  For example, the term “performance” may be problematic because it is capturing all emails about employee performance evaluations and you are interested only in emails regarding product performance.  In order to limit false positives, I would ask that the adverse party first use the “but not” Boolean operator.  This may eliminate the need for proximity operators altogether.
  • Do ask your adversary to propose a list of custodians.  While your adversary may push back and ask that you provide the initial list, that procedure is not efficient.  They have access to the information and you can meaningfully negotiate the list only once you have reviewed some documents and have had an opportunity get an idea of the key players in the litigation. 
  • Do compare the initial list of custodians to the persons listed in the adverse party’s answers to interrogatories and initial disclosures.  If you have a list of key players identified from non-ESI discovery, also compare the custodian list to that list.
  • Do reserve your right to request additional custodians if your review of the ESI productions reveal key players who are not on the custodian list.  The same goes for search terms.  Once you have reviewed documents, you are in a better position to determine in-house terminology and thus, you may have to add to your search terms.
  • Don’t forget to search the custodians’ desktops, hard drives, portable drives and other easily accessible locations that may contain relevant ESI.  Be careful when asking for too much because searching for data in areas such as archived systems can trigger cost-sharing.  See Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).

Negotiating ESI is a lengthy (and often painstaking) process, but in this day and age, ESI is key to all litigation.  Not demanding ESI is akin to telling your adversary that the adverse party doesn’t have to open filing cabinets during the discovery process.  Therefore, you must make a meaningful effort not only to understand ESI discovery, but also to zealously explore and negotiate thorny issues like search terms, custodians and data location.