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ESI PROTOCOL 101

ESI PROTOCOL 101. A Tale of Two Perspectives. Speakers.

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ESI PROTOCOL 101

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  1. ESI PROTOCOL 101 A Tale of Two Perspectives

  2. Speakers • Kimberly Scott is a partner at Miller, Canfield, Paddock & Stone where she specializes in antitrust law; sports, media and entertainment law; and commercial contract and tort litigation. She also handles complex commercial litigation discovery as well as electronically stored information management issues. Contact Kimberly at scott@millercanfield.com. • Mark Manoukianhas spent the last 18 years in legal IT at Kegler, Brown. He is a steering committee member for ILTA’s Emerging Technologies Peer Group and has previously served as the peer group’s vice president. Mark frequently gives presentations and writes about legal technology. He can be contacted at mmanoukian@keglerbrown.com. • Cindy MacBean, is a highly experienced litigation support professional who has managed litigation support in both corporate legal departments and an Am Law 100 law firm. She is a member of ILTA's Litigation and Practice Support Peer Group Steering Committee. Contact Cindy at cmacbean@wthf.com.

  3. ESI Protocol • Agreement between parties with or without Court participation that governs the who, what, when and how of Discovery activities • What data sources that are going to be produced • When key Discovery dates are scheduled • How data is going to be produced

  4. ESI Protocol May be incorporated in a Discovery Plan, a completely negotiated agreement about due dates and deliverables – that is 90% attorney related The ESI Protocol discusses the deliverables for discovery production that includes the negotiated items from a overall  perspective that is an attorney document with significant input from IT / Lit Support Logistical details that is mostly technical but needs to be agreed to,  fields, formats, etc.   Usually every party makes sure their technical interests are covered.

  5. Common to ALL Venues • Federal Court has defined a Discovery Plan that is due about the time the parties complete the 26(f) conference. • Some state courts mimic the Federal Rule requirements • Other state / county courts may or may not have rules • Other forums, like Arbitration, can have voluntary Discovery Plan

  6. Discovery Plan – Components • Case Information • Overall Timeframe • Discovery Needed • Mandatory Disclosures • ESI Disclosures • Stipulation re: Privilege Claims • Completion of Discovery • Interrogatories • Request for Admission • Depositions • Date of Expert Disclosures, Supplementations and Challenges • Clawback Agreements • Protective Orders • Other Items

  7. Negotiated Terms of Discovery Productions • Production of Hard Copy Documents • Production of ESI • Production of Proprietary Files • Special formatting for Excel, Word, PowerPoint files • Rolling or one-time production • Non-Party Productions • Good Faith Negotiation • Process to fine-tune agreements

  8. Nitty-Gritty Details • Exact specifics and formats of files and load files • Email production specifics • Native / Tiff image productions • Hard Copy & Metadata fields to be produced • Text files to be included and format • Log file formats for excepted files • Redactions • Protected Documents

  9. The Reality of the Protocol • When is IT / Lit Support engaged? • Leading up to the Discovery Plan / 26(f) • When discussion / negotiating the discovery agreements • Productions begin

  10. Attorney | IT Perspectives • What do you worry about ? • Where is your focus ? • What logistical concerns do you have ? • What details do you need to communicate ?

  11. Questions?

  12. REFERENCES • Eastern District of Michigan’s Model Order Relating to the Discovery of Electronically Stored Information (ESI) Checklist for Rule 26(f) Meet and Confer Regarding ESI: http://www.mied.uscourts.gov/News/Docs/EsiOrderChecklist.pdf • Northern District of California’s Guidelines for the Discovery of Electronically Stored Information; ESI Checklist for use during the Rule 26(f) meet and confer process; and Model Stipulated Order Re: The Discovery of Electronically Stored Information: http://www.cand.uscourts.gov/eDiscoveryGuidelines • District Court of New Hampshire’s Discovery Plan: http://www.nhd.uscourts.gov/pdf/Civil%20Form%202.pdf

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