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 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 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 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.
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.
Percipient provides an 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 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.