ESI protocols determine how electronically stored information (ESI) can be processed, stored, and used for litigation.

Federal Rule of Civil Procedure 34(b)(2)(E) provides that, unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i)    A party must produce documents as they are kept in the usual course of business  or must organize and label them to correspond to the categories in the request;

(ii)   If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii)  A party need not produce the same electronically stored information in more than one form.

Why have an ESI Protocol when you have FRCP 34(b)(2)(E)?  Don’t leave it to chance for what search methodology or production format will be acceptable to all parties or how the court will apply FRCP 34(b)(2)(E) to a specific discovery issue. Additionally, if the court enters the ESI Protocol as a court order, Federal Rule of Civil Procedure 37(b) provides an avenue to seek sanctions for violations of the ESI Order.[1]  By making use of an ESI Protocol, you give your client the opportunity to define the scope of review/production and lower discovery costs (e.g., exclude voicemail, text or instant messages, deleted data, or backup tapes from collection, review, and production).  An ESI Protocol can also set boundaries on search methodology (e.g., search terms, date scopes, or custodians) or allowance of Technology Assisted Review (TAR) or use of Artificial Intelligence (AI). Other considerations include redaction labeling specifications, privilege log format requirements, placeholder use and language, and cost sharing provisions should a party need to go back to the well for discovery.

You should always check the local rules and the judge’s preference when drafting an ESI Protocol.  Common topics to cover in an ESI Protocol include the following:

• Definitions. Drafting definitions allows parties to draft an ESI Protocol that applies more directly to their individual circumstances.
• Search / Data Culling Methodology.  This is an opportunity to establish how parties will go about identifying responsive information and can head off costly disputes and motion practice later in the litigation.  Examples of items to address include search methodology (e.g., search terms, custodians, cost containment) and the allowance of technology assisted review (TAR)/artificial intelligence (AI).
• Production Specifications.  Providing production details such as confidentiality branding, Bates format, image vs. native format, metadata fields, text files, and delivery format sets expectations for production formats that will work with the technology available to the parties.
• Deduplication and email threading.  Providing for deduplication and email threading in the ESI Protocol can help prevent costly motion practice and adverse judicial interpretation should a party challenge these culling methods.  Addressing deduplication and email threading in the ESI protocol can also be an opportunity to require production of duplicate custodian and file path information.
• Meet and confer / disclosure requirements.  Clearly setting expectations in the ESI Protocol will encourage communication and resolution of issues prior to involving the court.[2]
• ESI Liaisons.  Disclosing and requiring ESI liaisons participate in e-discovery meet and confers ensures the most knowledgeable individuals regarding e-discovery are participating in the meet and confers.

When to do this? Early!  Data needs to be collected and processed in a way that satisfies the ESI protocol regarding deduping, threading, and metadata field extraction and can guide initial disclosure productions.  Additionally, the ESI protocol negotiations can highlight trouble spots early in the discovery process.  The protocol can also work as a companion to other documents such as the Protective Order, Privilege Log Order, and 502(d) Order.  These negotiations can take time, so definitely start early! 

[1] In Radiologix, Inc. v. Radiology & Nuclear Med., LLC, No. 15-4927-DDC-KGS, 2019 WL 354972, at *6 (D. Kan. Jan. 29, 2019), the Court explains that “even if plaintiffs' inadvertent failure violated the ESI Order, the court has discretion to award sanctions under Rule 16(f)(1) and 37(b)(2)(A).”  

[2] In In re Valsartan, Losartan, & Irbesartan Prod. Liab. Litig., No. CV 19-2875 (RBK/JS), 2020 WL 7054284, at *1 (D.N.J. Dec. 2, 2020), the Court expounds on the risks when parties do not meaningfully meet and confer regarding ESI discovery.