Negotiating a document exchange protocol with opposing party

The agreement on a document exchange protocol, known by various names depending on your jurisdiction, is a key theme within most jurisdictions. Even if not an express requirement, agreeing on a protocol with the other party when using eDiscovery to support your discovery and disclosure process, is the best way to get the most out of the process.

While there should be consistencies between protocols, lawyers should refrain from relying too heavily on precedents and instead ensure that each protocol reflects the reality of each matter and current best practice. The Courts strongly support amendments to any suggested protocol that will ultimately see parties work more efficiently and reduce the cost associated with the discovery and disclosure process.

Consider

• Document volumes and types. Your position on various parts of the protocol should be guided by your document set. You should not be negotiating a protocol without having a firm understanding of what it might mean for your document review.

• The relevant jurisdictional requirements. The jurisdictions have different requirements for the discovery and disclosure process, particularly in relation to timing and what needs to be included in a protocol. If you wish to depart from those requirements, ensure you prepare the technical justification for doing so.

• Industry best practice. Many of the jurisdictions practice directions are several years old. eDiscovery technology and process changes frequently and adopting the current best practice will maximise the positive impact of the process on your matter.

• Proactively engaging the other parties. It is rare that an agreed protocol between the parties is rejected by a Court, even if it does deviate from the jurisdiction norm. To achieve this, you should engage with your other parties early regarding the relevant form and function.

Related

Document Protocol Guide