Agreement Remains Key to Using eDiscovery Technology to Control Costs | McGuireWoods LLP

Increasingly, parties are accepting the use of technology as a method to control the costs of discovery for electronically stored information (ESI). Discovery rules often permit parties to stipulate procedures governing discovery, including the use of specific technologies. Disclosing the planned use of a data reduction method in a negotiated ESI protocol allows parties to address objections regarding the technology prior to implementation and helps protect against later claims that ESI production was incomplete.

The parts in In re Actos Antitrust Litig. agreed to an ESI protocol that expressly permitted parties to deduplicate ESI by identifying copies of entirely duplicative documents and limiting production to one copy, but was silent on whether email threading could be used to further reduce the ESI set. Email threading groups ESI into email threads and identifies messages that are fully contained within another message. This allows a long email chain to be reviewed as one conversation and excludes from review and production the individual, earlier-in-time messages in a chain.

A defender in the Actos matter applied email threading despite the negotiated ESI order’s silence on the topic and excluded the earlier-in-time messages from production. The plaintiffs objected, arguing that certain useful metadata, such as the dates and recipients of some emails, were wrongfully excluded, resulting in an increased burden of searching and analyzing the produced data.

Notwithstanding the burden this imposed, the court ordered the defendant to produce the additional responsive emails that email threading had removed. In making that determination, the court noted that parties must negotiate ESI protocols to allow all parties to address their legitimate concerns. Had they raised the issue of email threading during the ESI negotiations, the parties may have been able to design a protocol that addressed the concerns raised, but the defendant’s unilateral action foreclosed that possibility. The court also noted that it was not uncommon for parties to expressly address email threading in ESI protocols, and the defendant had done so in an unrelated matter before the court.

It is often the case that all parties to a matter of benefit from the use of technology like email threading, which serves to eliminate duplicate content. While courts are increasingly familiar with these technologies and the burdens they reduce for the parties, disclosure and agreement remain key.

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