Trial Magazine

Litigators often dread the creation and negotiation of an electronically stored information (ESI) protocol—a document governing the preservation, collection, and production of ESI. Attorneys may unintentionally ignore important technical issues in favor of a quick resolution, borrow stock forms without fully understanding their content, or—worse—allow more experienced opposing counsel to dictate key parameters.

Problematic provisions in ESI protocols can hamstring attorneys in future cases, impose unrealistic burdens on clients, and confuse courts. A poorly drafted ESI protocol does not merely affect one single case; rather, it can be cited and relied on in future cases as “the model protocol.”

Below are commonsense considerations—and their implications—that will help guide you when drafting and negotiating ESI protocols. Keep in mind this guide represents a starting point, not a treatise on all issues. We recommend that attorneys seek guidance from firms with specially trained and experienced lawyers who have personally negotiated ESI protocols, particularly in complex civil matters when significant issues or damages are at stake.

Purpose of the ESI Protocol

An ESI protocol generally governs the preservation, collection, and production of ESI. It should also address search procedures,¹ hard copy document productions, and confidentiality redactions. In some instances, parties also may include parameters governing privilege logs and document authenticity. For example, if the parties expect there will be few privilege issues, it may be simpler to include an abbreviated privilege protocol within the ESI protocol rather than creating an entirely separate document.

The protocol details the processes, requirements, and technical issues critical to each stage of discovery. Absent an effective protocol, opposing parties may produce documents without the formatting or data necessary for an adequate understanding of relevant evidence. 

For example, a spreadsheet produced as an image file loses nearly all its value since a receiving party cannot view underlying formulas and data. Or, an email thread may contain dozens of key emails, but without each email’s underlying metadata² and information, the receiving party may be severely limited in searches and reviews.

Consult Experts and Hire Vendors

Before negotiating an ESI protocol—and depending on your familiarity with the issues—we recommend retaining (or at least consulting with) attorneys specially trained and experienced in negotiating ESI issues, especially when drafting a protocol and selecting a vendor and review tool. To that end, some federal courts are recommending that parties select an e-discovery “liaison” to aid with the technical aspects of e-discovery while also requiring that attorneys be familiar with e-discovery rules and procedures.³ For larger cases, you may consider retaining an ESI attorney in a more formal capacity as special discovery counsel.

We also recommend selecting an e-discovery vendor: a company that will help you collect and process your client’s documents for production and subsequently host the opposing party’s documents for review and analysis. Select a vendor based on detailed questions about costs, software capabilities, experience with similar types of clients and cases, and available customer service. You can then closely consult with the vendor as you negotiate technical issues in the ESI protocol. These relationships can save you and your clients time, money, and frustration.

Core Topics in the Protocol

At a minimum, the following topics should be addressed in the ESI protocol.

Purpose. Include a brief description of the case, and identify the court. Consider including a reference to any local rules or model orders if your case is in certain federal or state courts (the Northern District of California and the District of Maryland are two leaders on ESI issues).⁴ Also consider referencing any other related litigation (for example, if the case is part of a consolidated matter or multidistrict litigation). 

Cooperation. Consider including a section requiring the parties to cooperate in good faith. This may include language about meeting and conferring or avoiding court intervention absent repeated disagreements. Again, know your court’s local rules and how they may impact any discovery disputes or motion practice.

Definitions. Either define key terms or cite to other leading publications for their glossary (for example, The Sedona Conference® Glossary: E-Discovery & Digital Information Management).⁵ Do not assume that all terms are easily understood by the court or opposing counsel, and make sure none of the terms could adversely impact your client. For example, “de-duplication” can be interpreted differently without sufficient details to cabin the term (whether de-duplication will apply only to individual documents or at the family level). 

Preservation. Address precisely what must be preserved in your litigation and for how long. This may include the identification of sources of potentially relevant information, deadlines for exchanging key custodians and organizational charts, descriptions of retention policies, and the impact of any document deletion and spoliation on relevant evidence. If you have concerns about opposing parties’ retention, ask for retention letters or a meet and confer early in the process to discuss the issue further.

Search. Detail the procedures for identifying and collecting documents and data relevant to the litigation. This may include the location of easily identifiable documents (for example, policies, contracts, and other documents kept in a central database); the exchange and development of search terms; and the use of technology-assisted review (TAR), an advanced search methodology designed to streamline reviews.

For more complicated matters, consider keeping this “search” section brief in favor of drafting a separate “search protocol” that better details the associated search procedures and testing models to use throughout discovery. Discuss the available technologies with your vendor, particularly with respect to TAR.

Production formats. This is the most technical section of the ESI protocol and frankly the section that confuses many attorneys. Address precisely which format must be produced for each type of document: native files (the original format of a file, such as .doc or .ppt); TIFF images (a converted image of the file); associated metadata; databases; and hard copy documents. Consult your e-discovery vendor to understand the operative review tools and software before agreeing to any provisions. Also, ensure that your client can comply with any requirements before proceeding.

Modification. Briefly address how the ESI protocol may be changed if necessary (typically by stipulation or court order). Although modifications are rare, procedures may need to change if the parties are experiencing substantial difficulties—either with the data or with their outside vendor. Often, this is simply a one-line section at the end stating, “This Protocol may be modified by stipulation of the parties or by the Court for good cause shown.”

Metadata. Metadata is essentially detailed structured information about a document, including familiar fields such as the author of the document (“AUTHOR”) and the creation date (“CREATEDATE”), and unfamiliar fields such as the “hash” that identifies data using a numeric value (“HASH”).

There are hundreds of available metadata fields depending on document types, but in many cases, only a modest subset of them is needed. Still, some of this information is critical to fully understanding the document.

For example, when you analyze an email, metadata fields provide helpful context and allow attorneys to easily sort, search through, and categorize thousands of documents using data such as the author, the sent date, or the recipients.

Articulate to opposing counsel which metadata fields are appropriate and necessary. Attach an exhibit to your ESI protocol with a chart detailing each metadata field that must be produced for electronic documents. Understand which metadata fields can be processed and produced for your client, and evaluate which metadata you want from the opposing party to fully appreciate relevant evidence.

This list is by no means exhaustive. Many parties insert provisions about privilege reviews and clawback agreements.⁶ Other parties may suggest that a model ESI order be followed verbatim; however, remember that a model is a starting point—not a definitive guide.⁷ Local court rules also may require additional issues to be addressed such as the appointment of e-discovery “liaisons” (lawyers or experts who can help resolve complicated disputes).⁸ And, as detailed below, client concerns and expectations are paramount.

Managing Client Concerns and Expectations

Consult your client early and often as you negotiate the ESI protocol. Remember that this document imposes requirements on all parties in the litigation.⁹ To the extent that you seek voluminous data from the opposing party, make sure your clients understand that the same demands apply to them. Discuss the core topics above—particularly preservation obligations, search procedures, production formats, and metadata—at length with them. Consider the costs and burdens of searching various sources within client files. Discuss the likely custodians and time frame. And, of course, send a retention letter to your clients and remind them about precisely what must be preserved during the litigation. Specifically discuss the preservation of social media accounts with your client even if the data ultimately is never collected or produced.

Hot Topics in ESI Protocols

The scope of available ESI is continually evolving as new communication platforms flourish, and attorneys therefore must familiarize themselves with alternative sources of data and how to address those in the protocol.

Social media. Social media is often a sticking point in ESI negotiations and discovery exchanges. Defendants usually push back on the burden of searching employees’ social media accounts regardless of relevance, while our individual clients routinely wonder why their social media posts are even relevant at all.

Attorneys tend to generalize requirements in preservation letters (and subsequent conversations), but for social media accounts, you should be specific. Find out which social media accounts have been active during the relevant preservation period, and talk to your client about why it is important to preserve any potentially relevant posts or messages. Include that information in the preservation letter. 

Also use this opportunity to discuss social media collections with your vendor—how much will it cost and how time intensive will it be to collect the relevant information? This may impact how you negotiate the preservation and search provisions in the ESI protocol. 

Ensure that you fully understand how a defendant’s employees conduct business via social media (for example, using Instagram or Facebook for branding or communications with customers), and conduct your own investigation into the same before addressing that data source in the protocol.

Home devices and wearables. The same goes for home devices, such as Google Home or Amazon Alexa,10 and “wearables,” such as Apple Watch or Fitbit. Depending on the type of case, evidence from these devices may be relevant—to the extent that it exists. Discuss these sources with your client and vendor to ensure you capture all potentially relevant sources of information. If any of these devices have an “automatic deletion” feature (the equivalent of an email archiving or deletion tool), seek to suspend that feature. These devices may implicate serious privacy concerns for clients, so tread carefully. You may wish to exclude certain devices from an ESI protocol, but remember those provisions are reciprocal.

An ESI protocol is an incredibly useful tool during discovery. Negotiate the protocol early, carefully, and with attention to detail before discovery commences to ensure that documents are produced in the appropriate format. Do not let opposing counsel or model orders lull you into a false sense of security on complex issues, and remember that insufficient ESI protocols can lead to unnecessary challenges in your case and significant expenses for your client.

Ariana J. Tadler is the founder and a partner of Tadler Law and a founding principal of Meta-e Discovery, and Brian R. Morrison is senior counsel with Tadler Law, both in New York City. They can be reached at atadler@tadlerlaw.com and bmorrison@tadlerlaw.com.

Notes

1. As detailed later in the article, we recommend drafting a separate “search protocol” to more fully develop search procedures. 
2. Metadata is electronic data that describes the various characteristics of ESI and can provide information such as who created a document, when it was accessed or modified, and how it was formatted. See Sedona Conference, The Sedona Conference® Glossary: eDiscovery & Digital Information Management (5th ed. 2020), https://thesedonaconference.org/publication/The_Sedona_Conference_ Glossary.
3. See, e.g., N.D. Cal., United States District Court Northern District of California: Guidelines for the Discovery of Electronically Stored Information 2.05 (Dec. 1, 2015), https://www.cand.uscourts.gov/filelibrary/1117/ESI_Guidelines-12-1-2015.pdf (“In most cases, the meet and confer process will be aided by participation of e-discovery liaisons as defined in this Guideline.”); see also id. at 3.01 (requiring counsel to be familiar with the various e-discovery rules and advisory notes).
4. See [Model] Stipulated Order Re: Discovery of Electronically Stored Information for Standard Litigation (N.D. Cal.), https://cand.uscourts.gov/filelibrary/1119/Model%20Stip%20E-discovery%20OrderStandard.docx; Suggested Protocol for Discovery of  Electronically Stored Information (D. Md.), https://www.mdd.uscourts.gov/sites/mdd/files/ESIProtocol.pdf.
5. See The Sedona Conference® Glossary, supra note 2.
6. For all but the simplest cases, we recommend creating a separate privilege protocol or Federal Rule of Evidence 502(d) order if you deem such a provision appropriate.
7. See Suggested Protocol (D. Md.), supra note 4 at 1. 
8. Id.
9. In many cases—especially in simpler civil matters—we negotiate protocols as applicable to all parties. However, in large multidistrict litigation, parties sometimes enter into ESI protocols that only govern the larger corporate defendants, while then entering into separate agreements or provisions for individual plaintiffs. To the extent you believe there is good cause for provisions that differentiate between parties, be sure to delineate those differences clearly.  
10. If your client believes a device like Alexa retains no data, think again: Sophisticated parties may seek to extract or subpoena data from Alexa or other similar devices. See Makena Kelly & Nick Statt, Amazon Confirms It Holds on to Alexa Data Even If You Delete Audio Files, The Verge (July 3, 2019), https://www.theverge.com/2019/7/3/20681423/amazon-alexa-echo-chris-coons-data-transcripts-recording-privacy (“Amazon has admitted that it doesn’t always delete the stored data that it obtains through voice interactions with the company’s Alexa and Echo devices—even after a user chooses to wipe the audio files from their account.”).