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Negotiating eDiscovery protocols: Part I

Sarah Brown 08 / 21 / 19

Expert Perspectives: The Legility Expert Perspectives series features insightful interviews with thought leaders, technologists, and leading legal innovators at the forefront of the global business and practice of law. In today's edition, we interview Geoffrey Geftman, Discovery Consultant in Michael Best’s Information Governance and Discovery Services team, on his recommendations for negotiating eDiscovery protocols. This is Part I of II - stay tuned for Part II next week!

Flexibility is key in negotiating eDiscovery protocols

Q: The first step in an eDiscovery project after data collection is typically processing. Advanced planning can go a long way toward ensuring success. What standard protocols and processes do you recommend for eDiscovery processing?

A: Processing essentially means the ability to cull data using date restrictions, custodians, search terms, pre-filtering, and deduplication.

Savvy legal practitioners should adopt an iterative and collaborative approach. First, start with test search terms, then review results with attorneys, and repeat. During this process, participate in ongoing negotiating with opposing counsel until everyone is comfortable with the methods and search terms selected. Being flexible in this area is critical. For example, what happens when both parties agree on search terms, but the resulting data set is too broad? Without flexibility, a body of documents too large for review is very difficult to correct later in the eDiscovery process.

eDiscovery processing and production: Know your standards

Q: What's the standard protocol in eDiscovery processing? 

A: Global deduplication is the standard. Everything else is more of a moving target based on the case. Whatever you can do from an early point to cull your data set is beneficial: Search terms have become the standard because there’s a cost in terms of promotion and hosting. Processing and analytics are often run early with large data sets, since much of the data will be irrelevant with broad collection ranges.

Outlining your production shouldn’t be a point of contention. It should be a meeting place where both sides get together to understand what they need.


Advanced planning in eDiscovery

Q: You recommend advanced planning in eDiscovery production as well – what specifically should practitioners do to ensure success?

A: With production, you often will see a plaintiff side with a small amount of data; the defense side has much more. This often results in a situation where a production may cost more to format than the data itself is worth. The worst case I’ve encountered was about 15-20K pages put into a single PDF without any page breaks. It took about 15 minutes or that PDF just to open and load!

What’s the takeaway? Outlining your production shouldn’t be a point of contention. It should be a meeting place where both sides get together to understand what they need. Courts don’t want to hear data format complaints. Simply taking the time to understand the preferred format, and using a protocol can make it so there are no questions later.

What's the standard protocol in eDiscovery production?

Because most people are using tools with specific loading capabilities, parties tend to want:

  • Page-level images:
    •  TIFF files when the images are in black and white
    •  JPG files when color is needed or requested
  • Separate, document-level text files
  • Native files only when dealing with audio-visual files, files that cannot be imaged, or document types that don’t image well such as Excel or PowerPoint

There are some standard metadata fields, but it is dictated by what’s agreed to by the parties involved – this is another reason to plan ahead and negotiate early.

Check back in next week for more essential best practices from Geoffrey Geftman on proven best practices – and how to avoid common pitfalls.

About Geoffrey Geftman: Geoffrey brings more than a decade of legal and eDiscovery experience to his work as a discovery consultant. He consults with clients, attorneys, and technical support teams to develop custom workflows and leverage legal technologies in order to create cost-efficient practices and streamlined discovery efforts. Applying his industry experience from both the legal and technological perspectives, Geoffrey bridges the gaps to assist legal teams in developing strategies for responses to production requests and implementation of eDiscovery stipulations to minimize data and exposure for clients. Geoffrey regularly provides software training and legal education presentations to legal teams and litigation support specialists to keep them abreast of developing topics and trends in eDiscovery.

See how advanced planning in eDiscovery can work for you.

About the author

Sarah Brown
Sarah Brown

Sarah Brown is a legal technology thought leader with more than a decade of experience in the eDiscovery and information management fields. At Legility, her primary focus is on driving awareness for the company’s innovative services and solutions. Prior to Legility, Brown spent eight years as head of marketing communications at Epiq, where she led global marketing communications and built thought leadership, PR, and analyst relations programs. Prior to Epiq, she led marketing communications at Exterro, an eDiscovery software company, where she founded and led their content-driven marketing organization. She has a journalism background and holds a master’s degree in strategic communications from Columbia University and a bachelor’s degree in journalism.

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