eDiscovery Update: Be Hip and Build a Cool Stip

This article was originally posted on The Daily Record.

The other day, I spoke with a client after reviewing a draft ESI stipulation he sent me. In it was a paragraph referring to the preservation of text messages from mobile devices. The parties were to agree that messages stored on these devices are discoverable, but no action beyond preservation should be taken at this time.

I asked him how his client planned to preserve text messages when they needed to be collected, reviewed and produced. He stated they planned to address that in their legal hold letter and request that custodians do not delete any potentially relevant texts – basically a preserve in place strategy.

I then asked the following questions:

  • What about devices that may auto-delete messages? What is the plan to preserve those messages?
  • What about folks who lose their phones or ones who leave the company prior to your client having an opportunity to collect potentially responsive texts?
  • What about communications or text messages created or received from applications other than the standard ones (i.e. iMessage)?

There was a brief moment of silence and he responded that he hadn’t thought about those details. He only included that paragraph in the stipulation because it was part of the firm’s template; he had used it in other matters and hadn’t given it much thought. Perhaps he didn’t want to think about it or, more likely, he didn’t know all the technical details and scenarios surrounding the preservation of text messages.

I must confess. I made up the above story, but one can see it is not far-fetched. How could the attorney have avoided this potential misstep? Where does one find the perfect plan?

Sorry, like the jack-a-lope, the perfect plan doesn’t exist.

I know there is no perfect plan because I have had the pleasure of reviewing countless ESI plans/orders/stipulations over my career. I recall ones that were severely lacking in detail and simply stated that ESI will be preserved, while others were replete with detail and drilled down to address the resolution to be used when creating image files. And there were countless in between. A number of years ago it was difficult to find samples on the Internet of a really good ESI plan. That has changed. One can simply search the Internet for “sample ESI stipulation” and up pop dozens of relevant hits.

When you run this search (now or later – I know you will) you will see that a number of courts have posted model stipulations. Most contain sections on form of production, searching and, of course, preservation. Some contain granular details down to the number of custodians that can be searched while others are more general and leave room for tweaking and personalization.

One model I like is from the Northern District of California. It is succinct and in three pages it covers the key points of discovery from cooperation to the must-have 502(d) order protecting parties from waiver of privilege if documents are produced inadvertently.

Find one you like or create your own template using sections from various plans. No one plan is perfect and each matter may require you to add or subtract from each section.

One issue that could be addressed in more plans is an agreement by both parties to explore advanced technologies techniques when searching (initially) or reviewing data. The use of advanced technologies can reduce the overall cost of discovery. The model discovery plan set forth by the 7th Circuit does contain some language addressing the use of advanced search, but it could go further by mentioning specific well-known techniques.

“In addition to, or instead of the foregoing methodologies, the Parties may agree to use Boolean or other more advanced search capabilities.”

In my opinion the search section in the Northern California model is a bit limited, but does keep the door open to discuss search methodologies later down the road.

“The parties agree that in responding to an initial Fed. R. Civ. P. 34 request, or earlier if appropriate, 

 in order to identify ESI that is subject to production in discovery and filter out ESI that is not subject to discovery.”

Know what you are agreeing to in a plan.

Regardless of the plan you choose, make sure you understand what is being agreed to or word it to your benefit. For example, in my fictitious opening story, language from the Northern California model stipulation may be helpful in handling preservation complexities involved with mobile devices.

The stipulation states:

“In addition to the agreements above, the parties agree data from these sources (a) could contain relevant information but (b) under the proportionality factors, should not be preserved.”

Parties would agree that while data may exist, it is not necessary to preserve data from such sources.

Again, even though great examples exist on the Internet (or within your own firm) it is important to ensure you know what you are agreeing to or asking to be agreed to. So who can help you?

We can turn once again to our model Northern California exemplar and phone a friend.

The Northern California stipulation has a section on liaisons.

The parties have identified liaisons to each other who are and will be knowledgeable about and responsible for discussing their respective ESI. Each e-discovery liaison will be, or have access to those who are, knowledgeable about the technical aspects of e-discovery, including the location, nature, accessibility, format, collection, search methodologies, and production of ESI in this matter. The parties will rely on the liaisons, as needed, to confer about ESI and to help resolve disputes without court intervention.

There is no reason the liaison or their technical contact cannot help review any ESI plan before it’s signed.

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