Stipulations for Discovery of ESI: America’s Next Top ModelNovember 19th, 2015
In federal court—and in most state courts—parties must meet and confer at the beginning of the litigation to discuss various case management issues, and hopefully reach stipulated agreements about those issues. The discussions must address the discovery of electronically stored information, a subject that in too many cases causes needless amounts of disagreement, delay, expense, and overall angst among the litigants and counsel.
Why is the negotiation of ESI stipulations so difficult? For starters, many matters have an imbalance of e-discovery experience on opposite sides of the “v.” That imbalance can lead to protracted negotiations and difficulty in reaching practical, effective agreements. Another asymmetry often present in litigation can also pose ESI discovery challenges—where one party possesses a disproportionate amount of ESI subject to discovery (and thus bears an unequal burden), it can be more difficult for the parties to reach agreement. But even in symmetrical litigation, where both sides engage experienced, technically-savvy counsel, the complexity of e-discovery today (and the quick-changing nature of the technology we use) can still present obstacles to the efficient agreement of ESI stipulations.
Enter LTPI to the rescue. The Legal Technology Professionals Institute is a non-profit trade association created for and run by legal technology professionals, which aims to represent the common interests of all participants in the legal technology industry. A cross-section of experienced industry professionals participate in its projects, with the goal of providing operational and ethical standards, best practices, guidelines, resources, forums, and public advocacy. I am proud to serve on LTPI’s Advisory Panel, and to work on one of the organization’s first projects—the publication of a model ESI Stipulations agreement.
Model ESI Stipulations Agreement
By creating a model agreement, we hope to give counsel and litigants of all levels of e-discovery experience a reasonable, practical starting place for their ESI discovery negotiations. The drafting team included legal technologists, defense-side litigation counsel, plaintiff-side litigation counsel, and in-house corporate counsel. Of course, there is no one-size-fits-all-cases agreement, and litigants will need to think critically about our suggested provisions before proposing or agreeing to them. But our document is a good place to start, and it covers a comprehensive list of issues. Please take a look at our public comment draft, which is open for feedback. This model agreement is a work in progress—we welcome your input, and intend to make frequent updates to reflect changes in technology and best practices.
And while you’re there, take a look at the very first project we launched, the Production Glossary. The glossary is designed as an educational resource on terminology used in connection with producing electronically stored information. While a number of useful industry-wide glossaries exist, we could not find one that specifically discussed document production, nor one that discussed not only the “what,” but also the “why”—so we created one.
Finally, if you’re a legal technology professional, please consider joining LTPI. We’re looking for new members, especially if you’ve got great ideas for industry resources and the enthusiasm to bring your ideas to life!