Starting from what the case must prove
A sound eDiscovery strategy works backward from the claims and defenses: which facts need proof, which people were involved, and during what period. That shapes which custodians and systems to preserve and collect on your side, and which to target in requests to the other side. Collaboration tools like Slack or Teams, text messages, and personal devices used for work often hold the most candid material. Federal rules require discovery to be proportional to the needs of the case, and New York state courts, including the Commercial Division, have their own rules and expectations for electronic discovery. Understanding where data lives, in what format, and who controls it lets you negotiate scope from an informed position.
Protocols, tools, and privilege
Parties often agree on an ESI protocol covering search terms, date ranges, custodians, production formats, and how privilege logs will be handled. Technology-assisted review and other analytics can reduce review volume, and courts increasingly accept them when the process is transparent and validated. In federal cases, a court order protecting against waiver if privileged material is produced by mistake is worth seeking early. Data held by affiliates in Korea, Europe, or elsewhere may be subject to privacy and data transfer laws that limit collection and require planning. Keep a record of decisions about scope and the reasons behind them.
Lost data and incomplete productions
When electronic information that should have been preserved is lost, courts can order measures to cure the prejudice, and in federal court the most severe sanctions generally require a finding of intent to deprive the other side of the information. That still leaves room for costly consequences short of those sanctions, so early, documented preservation steps remain the most reliable protection. If the other side's production seems thin, specific and reasonable follow-up requests usually get further than broad accusations. We start by mapping the data landscape, the claims, and the deadlines, then build a plan that balances cost against risk.
