15 Issues to Consider for E-Discovery and ESI Protocols (2021 Update)

Under Federal Rule of Civil Procedure 26(f) and some state court rules like Colorado’s CAPP Rule 6.1, litigants are required to meet and confer early in a case to craft a discovery plan and discuss preservation and production of ESI (definition: electronically stored information).  Often, as a result of these meet and confer efforts, the parties draft formal, written e-discovery or ESI protocols (sometimes also called an “ESI agreement”).  The ESI protocol is often entered by the judge as a formal order and controls the conduct of electronic discovery and ESI discovery requests in the case.

For those unfamiliar with e-discovery concepts, negotiating an ESI protocol with opposing counsel may seem daunting.  However, in the end, nearly every protocol addresses some combination of the same issues and topics: 1) the scope of the ESI collection efforts; 2) the format in which electronic documents will ultimately be produced; 3) the handling of privileged information, and 4) miscellaneous items in the ESI process such as the designation of an e-discovery liaison and meet and confer issues.

When negotiating an ESI protocol, the following list, while not exhaustive, contains items to consider including, or at a minimum, provides topics and best practices for discussion with opposing counsel.

SCOPE OF ESI COLLECTION AND SEARCH

• Will the ESI protocol contain a list of locations that will be searched for relevant documents and ESI (for example, a list identifying specific computer networks, servers, and local hard drives)?
• Will the protocol include a list of persons (“custodians”) likely to possess relevant documents and ESI?
• Will the ESI collected be limited by date (for example, from 2018 to 2020)?  If so, consider including language making clear that date limitations do not prevent the parties from contending that relevant evidence arose outside of the agreed-upon time frame.
• What methods will the parties use to collect ESI?  Will search terms be used, or will the parties take advantage of predictive coding or computer-assisted review? If search terms are used, what are they? Does the producing party have an obligation to use search terms beyond the agreed-upon terms if it is reasonably believed use of the additional terms will lead to the discovery of additional relevant documents?  In a similar vein, should the protocol contain a mechanism to add additional search terms if additional information is learned warranting additional searches?
• Should email threading be used so that only the final, most inclusive email is subject to review?
• Should ESI be organized and labeled to correspond to categories of document requests?
• Is there agreement on what documents are “not reasonably accessible” under Federal Rule of Civil Procedure 26 and therefore not subject to discovery?  (For instance, automatic backup files or information contained on old backup tapes).  If an agreement is reached on ESI that is not reasonably accessible, consider preserving the parties’ rights to argue that the information is, in fact, accessible if circumstances warrant later in the case.
• Should the order include guidelines addressing proportionality and cooperation?

FORMAT OF PRODUCTION

• In what format will ESI be produced?  TIFF with text files or in native (original) format?  Are load files necessary?  How will the parties handle color documents?
• Should e-mail messages and attachments be numbered consecutively and produced together (sometimes referred to as parent-child relationships)? What about hyperlinked documents sent via email that are not actually attachments?
• Will metadata (internal data about the ESI such as creation date, author, recipient, and the like) be produced, and, if so, what categories of metadata will be produced?
• Must electronic versions of hard copy documents be created?
• Are rolling productions permissible?

PRIVILEGED INFORMATION

• How will the production of privileged material be handled?  Do the parties have a “clawback” agreement (an agreement to return inadvertently produced privileged information) under Federal Rule of Evidence 502(e) or a state counterpart?
• What is to be included on privilege logs?  Should communications from trial counsel be excluded?

E-DISCOVERY LIAISON

MISCELLANEOUS PROVISIONS

• If necessary, how will the ESI protocol be amended, and are there any specific topics or issues that require further meet and confer sessions?
• Should the protocol contain a provision stating that nothing in the agreement prevents the parties from challenging the admissibility of information produced under the protocol or otherwise objecting to its production or use at trial?
• Does the ESI protocol also govern ESI produced by third parties pursuant to subpoena under Federal Rule of Civil Procedure 45 or other state ESI rules?

As noted, this is not an exhaustive list but provides a good starting point to prepare for ESI protocol negotiations.  For further reference, some courts provide sample esi protocols and esi protocol templates.

Need Help With a Large Document Review?

Percipient provides end-to-end managed document review services and included in those services is advice and consultation regarding matters relevant to ESI protocols.  We are also available to participate in a pre-discovery meet and confer conferences and are prepared to act as a point of contact with litigation opponents regarding e-discovery issues. In the meantime, you can download our ESI checklist.

Other Articles You Might Want to Read:

Ten E-Discovery Issues to Address During Rule 26(f) and Other Discovery Conferences