Working with opposing counsel to reach an agreement about the discovery of electronically stored information (ESI) at the start of litigation is key to reducing the cost of discovery and avoiding objections, a trio of McGuireWoods attorneys wrote in a July 11, 2022, article for Law360.
In the article, “Agreement Among Litigants Key to Using E-Discovery Tech,” partners Anne Bentley McCray and Jill Crawley Griset and discovery counsel Alejandra P. Perez wrote that reaching an early agreement on “dethreading” data — the process of removing noninclusive threads of emails — can substantially reduce the costs of discovery because once data is processed it often generates continued data hosting charges for the life of the case.
The authors outlined key components of an ESI protocol, then cited a recent case, In re: Actos Antitrust Litigation, in which the parties’ ESI protocol did not address email threading, which allows a long email chain to be reviewed as one conversation. When a defendant attempted to apply email threading later, a U.S. district judge in the Southern District of New York ordered it to produce the additional responsive emails that email threading had removed, despite the additional burden imposed.
But parties who have met and conferred in good faith, clearly disclosed their ESI technology approach while seeking consensus, and been receptive to the concerns expressed typically find more success in reducing costs, the authors explained.
“It is often the case that all parties to a matter benefit from the use of technology like email threading, which serves to eliminate duplicative content,” the authors wrote. “While courts are increasingly familiar with these technologies and the burdens they reduce for the parties, disclosure and agreement remain key.”
Richmond attorney Nick Purtell also contributed to the Law360 article.