CBA Record March-April 2022

YOUNG L AWYERS S EC T I ON : COME TOGE THER numbers of documents from a document management system (i.e., loose ESI), the process depends on whether the docu ments are stored locally, on a server, or in the cloud; the particular type of fi les that need to be collected; and the particular software quirks of the speci fi c document management system at issue. process depending on your objections and the need to narrow the subpoena. However, completing the collection process and having an understanding of the amount of potentially responsive documents and data may allow the parties to more productively narrow the subpoena’s scope. Having this information at the ready is also critical should any motion practice concerning the subpoena be necessary, as you’ll need to explain to the court why the subpoena and/or its scope are improper.

of the subpoena or the ESI requests and instructions should be narrowed. Listen carefully to the other side’s position on why the requests or ESI instructions are reasonable and take detailed notes so that you can later inform your client about the discussion and so you are prepared for any motion practice. Also be prepared to discuss your client’s position on what a reasonable ESI protocol looks like, including being able to identify the main custodians, an appropriate date range, and appropriately narrow search terms. If you already understand the number of documents that may need to be reviewed, you should also be prepared to at least initially discuss how long you will need to review and produce potentially responsive documents. If further discus sions are necessary to narrow the subpoena before you or the vendor can determine the number of potentially responsive docu ments, inform opposing counsel of this and agree to further discuss the deadline for document production once the parties

Once emails, attachments, and loose ESI are collected, date range fi lters and search terms can be applied to attempt to identify responsive information and exclude nonresponsive information. Engaging a vendor to collect this material will help ensure the collection is defensible (i.e., that the entire universe has been col lected with all necessary metadata intact). Be aware that having more data typically means having higher vendor costs. Engag ing a vendor can be very expensive depend ing on the amount of data the vendor needs to collect and process and on the amount of time required to complete the collection process. Th us, it may not always be feasible or advisable to complete the collection

Agreeing on ESI Protocol Tip 6: Meet and confer with opposing counsel regarding the subpoena’s scope and an appropriate ESI protocol. If your client has timely served a response and objection letter to the sub poena, opposing counsel should promptly contact you to set up a time to meet and confer regarding your client’s objections and proposed subpoena response. During the session, be prepared to explain the basis for your objections and why the scope

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