Why E-Discovery Protocol?


Too many Electronically Saved Information cases are left pending, without ever discovering the light of a solution in sight. The E-Discovery protocol is expected to facilitate the just, speedy, and inexpensive conduct of discovery involving Electronically Stored Information (ESI) in civil cases, and to promote, whenever possible, the resolution of disputes regarding the discovery of ESI without the intervention.

Lawyers engaged in civil litigation on smaller matters are not sure regarding the extent to which ESI must be preserved. They are worried about the costs associated with identifying, preserving, collecting, reviewing, and producing this information. This uncertainty, and a lack of understanding of the technical issues involved, forces many lawyers to choose one of the two extremes: over preservation to prevent sanctions or delegate preservation responsibilities to vendors or the clients themselves.

Without the benefit of large E-Discovery budgets, attorneys handling smaller matters may find themselves trapped. Engaging an outside expert to assess the client’s technology infrastructure and implement an appropriate E-Discovery protocol is prohibitively expensive. Clients may not be comfortable with the internal information being assessed by outside experts when their own technology personnel can handle the chunk of information. They may question the need to hire outside experts. These are, of course, reasonable arguments

Usually the time consuming collection of ESI may even go waste. Then there is the attorney review time which again takes a long time to process including the chunks of useless data that must have been collected. An E-Discovery protocol is intended to provide the parties with a comprehensive framework to address and resolve a wide range of ESI issues but it is not intended to be an inflexible checklist.

The Court expects parties to consider the nature of the claim, the amount in controversy, agreements of the parties, the relative ability of the parties to conduct discovery of ESI, and such other factors as may be relevant under the circumstances. Therefore not all aspects of this Protocol may be applicable or practical for a particular matter, and indeed, if the parties do not intend to seek discovery of ESI it may be entirely inapplicable to a particular case. The Court encourages the parties to use this Protocol in cases in which there will be discovery of ESI, and to resolve ESI issues informally and without supervision whenever possible.

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