There are many factors outside of an attorney’s control that can cause litigation costs to rise.   One of the main drivers of litigation costs is the ever-increasing amount and variety of discoverable data.  The proliferation of client data and the myriad modes of communication cannot be stopped or contained.  Some things, however, are still within a litigator’s control. 

One effective method of controlling litigation costs is through the negotiation and agreement of a protocol governing discovery of electronically stored information (“ESI”).  The negotiating of an ESI Protocol is required in the Complex Commercial Litigation Division of the Superior Court, the Default Standard in the District Court of Delaware governs the exchange of ESI, and ESI issues are discussed in the Court of Chancery Guidelines.

ESI Protocols can range from the simple to complex, and typically cover such topics as the format of production, how search parameters should be applied against data, and the method through which documents are exchanged.  The advent of new data types, creation of new sources of data, and advanced analytics, however, have introduced more complex issues into discovery; parties may want to address these subjects in the ESI Protocol to streamline litigation and reduce costs.

Below are some relatively new discovery concerns one may consider when negotiating an ESI Protocol.

Establish a Common Language
Litigators often use different words and phrases when talking about the same concept.  For example, some attorneys refer to “processing” of data while others may call it “indexing.”  One may call “loading” what others refer to as “promotion.”  “Threading” may often be confused with “deduplication.”  Even the term “production” can mean multiple things. Defining these various terms can streamline negotiations so that opposing counsel are not speaking past one another.

Modern Attachments
The concept of email parents and document attachments and how they are treated has long been something that litigators have dealt with in discovery. A new type of relationship to consider is “modern attachments.”  These are typically hyperlinks to cloud-based storage or document management systems embedded in email communications.  Sharing documents in this way has become much more common and this issue has now made its way into the discovery space.

Typically, the documents contained in these hyperlinks are not automatically picked up during document collection.  Regardless, the documents referred to in these hyperlinks are often sought in document requests.  When negotiating an ESI Protocol parties should be mindful of how their records custodians utilize hyperlinks, and the implications of agreeing (or not) to collect and produce the documents.  It is important to consider how the hyperlinked data will be produced; parties that agree to produce emails in sequential order with hyperlinked documents must be prepared for a significant amount of manual work to first collect and then ensure that the documents are placed in the agreed upon order. Others may choose to produce the hyperlinked documents, but not in any specific order.

Text and Instant Message Communications
Text messaging is perhaps the foremost way people communicate on a personal level and it has become commonplace in business as well.  Solutions such as WhatsApp are popular abroad and becoming more common domestically. As discovery of these types of communications has become normalized, many counsel find themselves at a loss in determining how best to search and produce them. 

Text messages taken on a one-by-one basis may not make much sense in a vacuum.  Attempting to search single text messages using traditional keywords often fails to recover relevant information.  But viewed together, the conversation begins to paint an intelligible picture. Because of this, parties may choose to treat whole g