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In many litigations, the need to properly structure a discovery protocol is often overlooked despite the fact that it is an essential element in the proceeding. (A protocol is a set of conventions governing the treatment, and especially the formatting, of data in an electronic communications system.)

By not making the proper requests to the other parties in a litigation, you can be denied valuable data. You will also fall short of meeting the e-discovery obligations as spelled out in FRCP 26(f).

FRCP (Federal Rules of Civil Procedure) are the rules that govern e-discovery and other aspects of the civil legal process. Rule 26 describes the duty to disclose and other general provisions governing discovery. The rule states that in the initial disclosure a party must, without waiting for a discovery request, provide the other parties with essential information such as:

  • Name and contact information of individuals likely to have discoverable information;
  • A copy or description of all documents, electronically stored information (ESI) and tangible things;
  • A computation of each category of damages claimed by the disclosing party; and
  • Insurance agreements regarding judgments.

A party must make the initial disclosures at or within 14 days after the parties' Rule 26(f) conference. In preparation for upcoming litigation you should be thoroughly familiar with the provisions governing discovery as spelled out in Rule 26. A copy of the document can be found here.

Discovery has moved beyond simply photocopying and shipping boxes full of documents to the opposing counsel. One of the major benefits of using modern discovery techniques is the preservation of metadata. Metadata is a general term for data that provides information about other data, to be simply put it is data about the data. In legal documents, descriptive metadata is a resource that can be used to facilitate the discovery process. This type of metadata can include elements such as a document title, abstract, author, time frames and keywords, as well as links to related data.

Use of “Native” Formats in E-discovery

A trend common in e-discovery is the growing practice of using “native” formats rather than transcribing the discovered material into some new format. However, keep in mind that FRCP notes that discovery be produced in the format used in the normal course of business.

In many cases, native data is the easiest format for things such as spreadsheets and correspondence. For example, a document that has been created in Microsoft Word will be entered into the discovery production in its original Word .DOC file format. Retaining such details as a formula created in Microsoft Excel can prove to be beneficial when performing an analysis of incoming production materials. Documents ranging from a spreadsheet created in Microsoft Excel to an individual email sent using Outlook can all be accommodated in native format in the current production process.

However, other items such as data from custom or proprietary applications such as QuickBooks or programs using databases such as SQL may involve exporting reports and may require the help of an expert to create custom queries.

Quick Look at “Load Files”

The e-discovery protocol also supports “load files” that are usually composed of ASCII text files that have specific delimited fields of information. They are used to import data extracted from ESI processing into a database. Load files also include metadata commands that cause the software to perform certain functions such as linking images or attachments to corresponding records. If properly executed, a load file will be a part of a larger set of information containing three or four folders containing the load file, images, text and natives.

All of the source files mentioned above contain additional formatting and hidden information, aka metadata, that would normally not be captured with a PDF or TIFF request. Such details as a formula created in a Microsoft Excel workbook may prove beneficial when performing analysis on an incoming production.

At times you will receive requests to include all files scheduled for discovery in a single large record saved in PDF format. This is not a good idea as you will lose valuable metadata in the process. You will also incur additional costs in order to consolidate these files. OCR (optical character recognition) may also be required to photoscan the text character-by-character and translate the images into character codes, such as ASCII. This is a time consuming and expensive process.

Failing to formally requesting detailed production formats, especially for electronic documents, can cause havoc with the review. For example, I'm familiar with a very small case where no formal ESI order was entered. The other side produced around 20,000 files over the course of three productions. (A production is a legal request for documents, electronically stored information, or other tangible items made in the course of litigation.) Unfortunately, each production was in a different format, some documents were duplicated between productions, and the productions had varying amounts of load files and metadata. It turned out that the cost to file motions to compel and set new discovery hearings to argue why “good” discovery should have been produced outweighed the estimated value of a settlement.

When it comes to following e-discovery protocols even the smallest cases can accumulate discovery costs that will make your head spin. Because of this, and to ensure you do not lose valuable data, make sure to clearly communicate protocol requirements before starting your e-discovery effort.

Aaron Vick is Chief Strategy Officer for Cicayda, a legal technology firm that combines powerful cloud-based eDiscovery and Legal Hold software with analytics and legal expertise. Early in his career, Aaron was part of the Rocket Science team that designed the first document research product, CaseLogistix, for the legal discovery market. After CaseLogistix's acquisition by Thomson Reuters, Aaron played an integral part in developing its Litigation Product Specialists team.