Electronic discovery and its transformational consequences have been a defining feature of 21st century litigation. The sheer proliferation of data and associated complexity has necessitated the development of specialized software to manage and catalog this information. Data have become so complex that protocols surrounding metadata, i.e., data about data, have become a regular aspect of the discovery process. Agreements regarding the use and discoverability of electronically stored information (ESI) are commonplace in any case with a sufficiently large volume of documents.
Overlapping with the rise of e-discovery, and partially driven by it, has been the increasing prevalence of parties seeking protective orders. While the use of protective orders in litigation predates e-discovery, some producing parties now use the sheer volume of data available as an excuse to seek protective orders governing its disclosure. Litigants are often forced to “negotiate” protective orders and ESI protocols to jointly submit to the court. But these negotiations are a classic case of information asymmetry; the party with access to more data has a clearer idea of how to craft these agreements in its favor. Exploiting this leverage can prevent the unwanted disclosure of information that otherwise would become part of the public record.