E-Discovery Protocol (ESI Protocol) - Enhanced Prompt

You are an expert e-discovery attorney tasked with drafting a comprehensive Electronically Stored Information (ESI) Protocol that will govern discovery procedures between parties in litigation. This protocol will likely be entered as a court order and must establish a complete framework for the preservation, identification, collection, review, and production of electronic evidence. Your draft must be precise, legally sound, and fully compliant with the Federal Rules of Civil Procedure, particularly Rules 26, 34, and 37, while incorporating best practices from The Sedona Principles and the Electronic Discovery Reference Model (EDRM).

Context and Preliminary Research

Before drafting, gather essential information about the specific litigation context. Search any available case documents to identify the parties' full legal names, case caption, court jurisdiction, docket number, and the nature of the claims and defenses. Understanding the substantive issues will inform proportionality decisions throughout the protocol. Review any existing discovery orders, scheduling orders, or local rules that may impose specific requirements on ESI discovery in this jurisdiction. If the parties have already conducted Rule 26(f) conferences, locate and review any meet-and-confer correspondence or preliminary agreements that should be incorporated into this formal protocol.

Examine the parties' information governance practices by searching for any data mapping documents, IT infrastructure descriptions, or retention policies that have been exchanged. This information will be critical for drafting realistic preservation obligations and identifying data sources. Look for any prior disputes or correspondence regarding ESI issues, as these may reveal areas requiring particular specificity in the protocol. If technical experts or e-discovery vendors have been retained, review their recommendations or proposals to ensure the protocol aligns with the technical approach the parties intend to employ.

Preamble and Foundational Provisions

Begin with a formal preamble that establishes this document as a stipulated ESI Protocol entered pursuant to Federal Rule of Civil Procedure 26(f) and the court's inherent authority to manage discovery. Identify all parties by their complete legal names and litigation designations, including the full case caption with court name and docket number. Articulate that this protocol represents the parties' good faith agreement following meaningful meet-and-confer discussions, and state whether it is being submitted for court approval or has already been approved as a standing order.

The introduction should clearly define the protocol's purpose as establishing efficient, proportional, and cost-effective procedures for ESI discovery while minimizing disputes and ensuring compliance with preservation and production obligations. Emphasize that this protocol supplements rather than replaces the Federal Rules of Civil Procedure and any applicable local rules. Establish the temporal scope of discovery by specifying relevant date ranges tied to the claims and defenses, and address proportionality considerations under Rule 26(b)(1) by acknowledging the importance of the discovery to resolving the issues, the amount in controversy, the parties' resources, and the burden versus benefit of proposed discovery.

Include a statement recognizing that ESI discovery presents unique challenges compared to paper discovery, including issues of volume, metadata, dynamic content, and technical complexity. Acknowledge the parties' commitment to cooperation and transparency in addressing these challenges, consistent with the 2015 amendments to the Federal Rules emphasizing proportionality and cooperation. Specify that this protocol may be modified by written agreement of all parties or by court order, and establish that it will remain in effect through the conclusion of litigation unless otherwise specified.

Comprehensive Definitions Section

Draft a detailed definitions section that establishes precise meanings for all technical and legal terms used throughout the protocol. Define "Electronically Stored Information" or "ESI" consistent with Rule 34(a)(1)(A) to encompass all writings, drawings, graphs, charts, photographs, sound recordings, images, and other data compilations stored in any medium from which information can be obtained, including but not limited to emails, word processing documents, spreadsheets, databases, presentations, instant messages, text messages, social media content, voicemails, audio recordings, video files, digital photographs, websites, and data from mobile devices and cloud-based applications.

Provide nuanced definitions distinguishing between system metadata (automatically generated information such as file creation dates, modification dates, file size, and file paths) and application metadata (user-created information such as document authors, recipients, subject lines, and track changes). Specify which categories of metadata will be preserved and produced, recognizing that different metadata fields have different relevance and that some metadata may be altered by routine processing.

Define production format terms with technical precision. "Native format" means producing ESI in the electronic format in which it is ordinarily maintained, preserving all metadata and functionality. "Static image format" means converting ESI to non-editable image files such as TIFF or PDF, which may not preserve all metadata or functionality but provides a fixed representation. "Load file" means a structured data file (typically in Concordance DAT or IPRO LFP format) that accompanies image or native productions and contains metadata fields, document identifiers, and coding information necessary to load documents into a review platform.

Establish clear definitions for "reasonably accessible" versus "not reasonably accessible" ESI as contemplated by Rule 26(b)(2)(B). Reasonably accessible ESI typically includes active data stored on current servers, workstations, and cloud platforms that can be retrieved through normal business processes. Not reasonably accessible ESI typically includes backup tapes, legacy systems, deleted or fragmented data, and information requiring forensic recovery or significant technical effort to retrieve. Specify that discovery of not reasonably accessible ESI may be subject to cost-shifting or require a showing of good cause.

Define privilege-related terms including "privilege log" (a document-by-document listing of withheld materials with sufficient information to assess privilege claims), "clawback agreement" (a protocol allowing parties to recall inadvertently produced privileged materials without waiving privilege), "quick peek agreement" (an arrangement allowing initial review of materials before formal privilege review), and "inadvertent disclosure" (unintentional production of privileged or protected information despite reasonable precautions).

Define key custodians as individuals identified by the parties as likely to possess relevant ESI based on their roles, responsibilities, and involvement in the events at issue. Specify that custodian identification is an ongoing obligation and that parties must supplement their custodian lists as new information emerges. Define data sources to include all repositories where ESI may be stored, including email servers, file servers, shared network drives, individual workstations, laptops, mobile devices, cloud storage platforms, collaboration tools, databases, and third-party systems.

Preservation Obligations and Litigation Holds

Articulate comprehensive preservation obligations that each party must undertake to ensure relevant ESI is not destroyed, altered, or lost. Specify the preservation trigger date, which is typically the date when litigation was reasonably anticipated, and may predate the filing of the complaint. Establish that preservation obligations extend to all ESI within the party's possession, custody, or control that is relevant to any party's claims or defenses, subject to proportionality limitations.

Detail the requirement for parties to issue written litigation hold notices to all custodians and IT personnel who may possess or control relevant ESI. Specify that litigation hold notices must clearly identify the nature of the litigation, describe the categories of ESI to be preserved, instruct recipients to suspend all document destruction activities, and provide contact information for questions. Establish that litigation hold notices must be reissued periodically (typically every 90 to 180 days) to ensure ongoing compliance, and that parties must document their preservation efforts including tracking acknowledgments from custodians.

Address preservation of both structured data (databases, spreadsheets, financial systems) and unstructured data (emails, word processing documents, presentations, instant messages, text messages, social media posts). Specify that preservation includes not only the content of ESI but also relevant metadata necessary to authenticate, understand, and use the information. Establish protocols for suspending automatic deletion features in email systems, document management systems, and cloud platforms, and for halting routine destruction of backup tapes or other archival media during the preservation period.

Include provisions for preserving ESI held by third parties over whom the party has sufficient control, including cloud service providers, IT vendors, outside counsel, consultants, and former employees. Specify the procedures for notifying third parties of preservation obligations and for ensuring their compliance. Address the technical methods for preserving different types of ESI, such as creating forensic images of hard drives for key custodians, implementing legal hold software, or segregating relevant backup tapes.

Establish agreed-upon limitations on preservation based on proportionality considerations under Rule 26(b)(1). These limitations might include temporal boundaries restricting preservation to ESI created or modified within specific date ranges relevant to the claims and defenses, custodian limitations restricting preservation to identified key custodians rather than all employees, source limitations excluding certain categories of ESI such as backup tapes absent a specific showing of need, or subject matter limitations aligned with the scope of relevant discovery. Specify that parties may seek relief from preservation obligations for ESI that is not reasonably accessible or where preservation would impose undue burden or cost, following the procedures in Rule 26(b)(2)(B).

Address the consequences of spoliation by establishing that parties will meet and confer in good faith before seeking sanctions for alleged preservation failures, and that any sanctions motion must demonstrate that the failure to preserve resulted from willful conduct or bad faith rather than reasonable limitations or technical challenges. Include a provision requiring parties to notify opposing counsel promptly if they discover that relevant ESI may have been lost or destroyed, and to provide information about the circumstances of the loss.

Identification, Collection, and Custodian Protocols

Establish a systematic methodology for identifying custodians and data sources likely to contain relevant ESI. Require each party to conduct a reasonable inquiry into its information systems, business processes, and organizational structure to identify individuals who participated in or have knowledge of the relevant events. Specify that parties must exchange initial custodian lists within a defined timeframe (typically 30 to 45 days after the protocol is entered), including each custodian's name, title, role in the relevant events, and the types of ESI likely in their possession.

Detail the process for challenging or supplementing custodian identifications, recognizing that discovery is an iterative process and that additional custodians may be identified as the case develops. Establish that parties must supplement their custodian lists promptly upon identifying new custodians, and that the opposing party may object to the addition of custodians if the identification is untimely or the custodian is unlikely to possess relevant information. Include provisions for limiting the number of custodians based on proportionality, potentially through a tiered approach where core custodians are searched first and additional custodians are added only if initial discovery proves insufficient.

Specify the technical methods for collecting ESI to ensure authenticity and reliability. For custodians whose ESI may be particularly important or contested, establish protocols for forensically sound collection including the use of write-blocking technology to prevent alteration of original media, generation of hash values (MD5 or SHA-256) to verify data integrity, and maintenance of chain of custody documentation. For routine collections, specify whether collections will be performed by IT personnel, e-discovery vendors, or forensic experts, and establish quality control procedures to ensure completeness.

Address collection from diverse data sources including enterprise email systems (Exchange, Gmail, Office 365), file servers and network attached storage, individual workstations and laptops, mobile devices (smartphones and tablets), cloud storage platforms (Dropbox, Box, OneDrive, Google Drive), collaboration tools (Slack, Microsoft Teams, SharePoint), social media accounts, and specialized business applications or databases. Specify the technical approach for each source type, recognizing that collection methods vary based on the system architecture and data format.

Establish procedures for collecting ESI from departed employees, including protocols for accessing archived mailboxes, retrieving data from decommissioned devices, and contacting former employees who may retain company information on personal devices. Address collection from third-party vendors or service providers, specifying which party bears responsibility for obtaining ESI from third parties and how costs will be allocated. Include provisions for handling encrypted, password-protected, or technically inaccessible data, requiring parties to make reasonable efforts to decrypt or access such information and to meet and confer if technical obstacles arise.

Detail the timing for collection activities, potentially establishing a phased approach where high-priority custodians or data sources are collected first, followed by additional collections based on case development and the results of initial discovery. Specify any agreed-upon filters to be applied during collection to promote proportionality, such as date ranges, file type restrictions (excluding system files, temporary files, or non-relevant formats), or deduplication at the collection stage to eliminate exact duplicates before processing.

Search Methodologies and Technology-Assisted Review

Establish comprehensive protocols for identifying relevant ESI within collected data sets through search methodologies that balance effectiveness with efficiency. If keyword searching will be employed, detail the process for developing, negotiating, testing, and refining search terms. Specify that parties will exchange proposed search terms with supporting rationale, and that the opposing party may challenge terms as overbroad, unduly narrow, or technically ineffective. Establish a testing protocol requiring parties to run proposed search terms against a representative sample of the data set and to exchange hit counts and sample documents demonstrating the terms' effectiveness.

Address the iterative nature of keyword searching by providing for term refinement based on testing results, with provisions for adding terms that capture relevant concepts missed by initial searches and removing or narrowing terms that generate excessive false positives. Specify technical parameters for keyword searches including whether searches will be case-sensitive, whether proximity operators or Boolean logic will be used, whether stemming or fuzzy matching will be applied, and which metadata fields will be searched in addition to document text.

If technology-assisted review (TAR), predictive coding, or other advanced analytics will be employed, establish detailed protocols governing the methodology. Specify the TAR workflow to be used, whether continuous active learning, simple passive learning, or another approach, and identify the software platform that will implement the TAR process. Detail the procedures for creating a seed set or training set of documents that will be used to train the TAR algorithm, including the size of the seed set, how documents will be selected (randomly, judgmentally, or through a hybrid approach), and which party or parties will code the seed set documents for relevance.

Establish quality control and validation procedures for TAR, including requirements for measuring and reporting precision (the percentage of documents coded relevant by the TAR system that are actually relevant) and recall (the percentage of all relevant documents in the collection that the TAR system successfully identifies). Specify target metrics for TAR performance, such as achieving 75% recall with 50% precision, or establish that TAR results will be deemed acceptable if they meet or exceed the effectiveness of keyword searching or manual review. Include provisions for ongoing monitoring of TAR performance through control sets or statistical sampling, and for adjusting the TAR protocol if performance metrics fall below acceptable thresholds.

Address transparency in TAR by requiring the producing party to disclose its TAR methodology, training decisions, and validation results to the requesting party, while recognizing that some aspects of TAR may implicate attorney work product protections. Establish dispute resolution procedures specific to TAR disagreements, requiring parties to meet and confer with their technical experts before seeking court intervention, and potentially providing for the appointment of a neutral technical expert to evaluate contested TAR methodologies.

Include provisions for other analytical techniques that may be employed to reduce review burden and improve accuracy, such as email threading to identify the most inclusive email in a conversation chain, near-duplicate detection to group substantially similar documents, concept clustering to organize documents by topic, and foreign language identification to route non-English documents for translation. Specify how these techniques will be validated and how parties will address any concerns about their effectiveness.

Processing, Deduplication, and Review Protocols

Detail the technical processing steps that will be applied to collected ESI before review and production. Specify that processing will include extracting text and metadata from native files, generating searchable text through optical character recognition (OCR) for image files, and normalizing data into a consistent format for loading into review platforms. Establish technical standards for processing including minimum OCR accuracy rates (typically 98% or higher for machine-printed text), handling of non-standard file formats, and procedures for addressing corrupted or damaged files.

Address deduplication protocols with precision, distinguishing between exact duplicate elimination (removing files with identical hash values) and near-duplicate detection (identifying files with substantially similar content but minor differences). Specify whether deduplication will be performed globally across all custodians or within each custodian's data set, recognizing that global deduplication reduces review volume but may obscure patterns of document distribution. Establish that deduplication will preserve at least one instance of each unique document along with metadata identifying all custodians who possessed the document and all locations where it was found.

Include provisions for email threading, which identifies the most inclusive email in a conversation chain and allows reviewers to focus on that email rather than reviewing each individual message. Specify the threading algorithm to be used and establish protocols for handling emails that fall outside identified threads. Address the treatment of email attachments, specifying whether attachments will be treated as separate documents or will be associated with their parent emails, and how family relationships will be preserved in production.

Establish filtering protocols for removing non-relevant file types and system files from the review population. Specify categories of files that may be excluded by agreement, such as executable files, system files, temporary files, or files below a minimum size threshold. Require the producing party to provide detailed information about filtering decisions including the number and types of files excluded, and allow the requesting party to challenge filtering decisions if they appear to exclude potentially relevant information.

Detail quality control procedures for the review process, including requirements for training reviewers on the case facts and relevance standards, implementing multi-level review for complex or privileged documents, and conducting statistical sampling to measure review accuracy. Specify target accuracy rates for relevance determinations and privilege identifications, and establish procedures for addressing quality control failures. Include provisions for handling foreign language documents, specifying which languages will be translated, the qualifications required for translators, and how translation costs will be allocated.

Address the review platform or software to be used, specifying technical requirements for compatibility, security, and functionality. Establish protocols for exchanging information about review platforms to ensure that productions can be loaded and used effectively by the receiving party. Include provisions for handling specialized file types such as audio recordings, video files, or complex databases, potentially requiring transcription, conversion to standard formats, or production in native format with appropriate viewers.

Production Format Specifications and Technical Requirements

Specify with exacting detail the format in which ESI will be produced, recognizing that Rule 34(b)(2)(E) allows requesting parties to specify the desired form of production and producing parties to object or propose alternatives. Establish a framework that balances the requesting party's need for usable information with the producing party's burden and cost considerations. Specify that certain file types will be produced in native format to preserve functionality and metadata, typically including spreadsheets (Excel, Google Sheets), databases, presentations with embedded multimedia, and other structured data where native format is necessary to understand the content. For native productions, specify any viewer software or technical requirements necessary to access the files, and establish that native files will be accompanied by metadata load files providing document identifiers and key metadata fields.

For documents produced as static images, specify whether TIFF or PDF format will be used, recognizing that TIFF is traditional in litigation but PDF is increasingly common and offers advantages such as text searchability and smaller file sizes. Establish technical specifications for image productions including resolution (typically 300 DPI for optimal readability), whether images will be single-page or multi-page files, color versus black-and-white rendering, and any endorsements or branding to be applied to images. Specify that image productions will include extracted text files (typically in OCR format) to enable full-text searching, and establish quality standards for text extraction.

Detail the metadata fields that will be produced, creating a comprehensive metadata specification that includes both standard fields and case-specific fields. Standard metadata fields typically include Bates number (beginning and ending), document date, author, recipients, subject line, file name, file path, file extension, file size, custodian, MD5 hash value, and parent-child relationship indicators. Specify which metadata fields will be populated for different document types, recognizing that email metadata differs from word processing document metadata. Establish that metadata will be provided in load file format with clear field delimiters and text qualifiers to ensure accurate loading into review platforms.

Establish Bates numbering conventions that will ensure unique identification of every page produced. Specify the Bates prefix to be used by each party (typically a party designation followed by a sequential number), the number of digits in the Bates number, and whether leading zeros will be used. Address how attachments and embedded documents will be numbered, specifying whether they will be numbered sequentially following their parent document or will be numbered separately with relationship fields indicating the parent-child association. Include provisions for endorsing Bates numbers on produced images, specifying the location and format of the endorsement.

Address the preservation and production of document family relationships, ensuring that emails and their attachments, embedded documents, and other related files are produced together with clear indicators of their relationships. Specify the metadata fields that will indicate family relationships, such as "Attachment Range" or "Parent Document ID," and establish that review platforms must be able to reconstruct document families based on the provided metadata.

Specify the production media and delivery method, whether productions will be delivered on external hard drives, through secure FTP sites, via cloud-based production platforms, or through other means. Establish the directory structure for productions, typically organizing documents by production volume and providing a logical folder hierarchy. Include technical specifications for production media such as encryption requirements, file system format, and any accompanying documentation such as production letters or load file specifications.

Address the production of paper documents that must be scanned to image format, establishing scanning specifications including resolution, color versus black-and-white, OCR requirements, and quality control procedures. Specify that paper documents will be Bates numbered and produced in the same format as ESI, with appropriate metadata fields indicating the source and custodian of paper documents.

Privilege Protection and Confidentiality Procedures

Establish comprehensive procedures for identifying, logging, and protecting privileged and confidential information throughout the discovery process. Specify the requirements for privilege logs pursuant to Rule 26(b)(5)(A), detailing the information that must be provided for each withheld document. At a minimum, privilege logs must include the document date, author, all recipients, document type (email, memorandum, letter), a description of the subject matter sufficient to assess the privilege claim without revealing privileged information, and the specific privilege or protection asserted (attorney-client privilege, work product doctrine, common interest privilege).

Address whether privilege logs will be produced on a document-by-document basis or whether categorical descriptions are acceptable for certain types of privileged materials, such as communications between in-house counsel and outside counsel on routine litigation matters. Establish the timing for privilege log production, specifying whether logs will be produced on a rolling basis as documents are reviewed or will be produced in consolidated form at specified intervals. Include provisions for deferring privilege logs for large productions, potentially allowing parties to produce documents first and provide privilege logs within 30 to 60 days thereafter.

Detail procedures for redacting privileged or confidential portions of otherwise discoverable documents, specifying that redacted documents must be clearly marked to indicate that redactions have been made and must be accompanied by a redaction log identifying the location and basis for each redaction. Establish that redactions must be limited to genuinely privileged or protected information and may not be used to withhold relevant, non-privileged content. Include provisions for challenging redactions, requiring the redacting party to provide additional information or submit redacted documents for in camera review if the requesting party disputes the propriety of redactions.

Establish a clawback agreement pursuant to Federal Rule of Evidence 502(d) or 502(e) to address inadvertent disclosures of privileged information. Specify that the parties acknowledge the volume and complexity of ESI discovery creates a substantial risk of inadvertent disclosure despite reasonable precautions, and agree that inadvertent production of privileged materials will not constitute a waiver of privilege. Detail the procedures for asserting inadvertent production, including requirements that the producing party notify the receiving party promptly upon discovering the inadvertent disclosure (typically within 10 business days), identify the inadvertently produced documents with specificity, and provide a basis for the privilege claim.

Specify the receiving party's obligations upon notification of inadvertent production, including requirements to immediately sequester the identified documents, refrain from further review or use, return or destroy all copies (including any copies made by experts or consultants), and delete any references to the privileged materials from work product or case databases. Address whether the receiving party may challenge the privilege assertion, establishing a procedure for meet-and-confer discussions and potential court resolution if the parties disagree about whether the disclosed materials are actually privileged.

Include provisions for obtaining a court order under Federal Rule of Evidence 502(d) to ensure that any inadvertent disclosures governed by this protocol do not waive privilege in other proceedings, including other litigation, regulatory investigations, or government enforcement actions. Specify that the parties will jointly request such an order and will cooperate in defending the order if challenged by third parties.

Address the treatment of attorney work product, distinguishing between fact work product (materials prepared in anticipation of litigation containing factual information) and opinion work product (materials reflecting attorney mental impressions, conclusions, or legal theories). Establish that opinion work product is entitled to heightened protection and will not be disclosed absent extraordinary circumstances, while fact work product may be discoverable upon a showing of substantial need and inability to obtain equivalent information through other means.

Include provisions for protecting confidential business information, trade secrets, personally identifiable information, and other sensitive non-privileged materials through a separate protective order. Reference any existing protective order or establish that the parties will negotiate a protective order governing the designation and handling of confidential information, including provisions for designating documents as "Confidential" or "Attorneys' Eyes Only," restrictions on disclosure to third parties, and procedures for challenging confidentiality designations.

Cost Allocation, Proportionality, and Cooperation Principles

Articulate clear principles governing the allocation of costs for ESI discovery, recognizing that ESI discovery can be substantially more expensive than traditional paper discovery and that cost allocation can significantly impact the parties' discovery strategies. Specify which party bears the costs of preservation activities, including litigation hold implementation, suspension of document destruction, and segregation of backup media. Typically, each party bears its own preservation costs, but establish provisions for cost-shifting if preservation obligations are particularly burdensome or if one party's discovery requests necessitate extraordinary preservation efforts by the opposing party.

Address the allocation of collection costs, specifying whether each party bears the cost of collecting its own ESI or whether the requesting party must bear some or all collection costs for burdensome requests. Establish that routine collection from active data sources is the producing party's responsibility, but that collection from not reasonably accessible sources under Rule 26(b)(2)(B) may be subject to cost-shifting. Detail the procedures for seeking cost-shifting, requiring the producing party to demonstrate that the requested ESI is not reasonably accessible due to undue burden or cost, and allowing the requesting party to show that the discovery is nonetheless warranted based on the proportionality factors in Rule 26(b)(1).

Specify the allocation of processing and review costs, which typically remain the producing party's responsibility but may be subject to cost-shifting for disproportionate requests. Address the costs of technology-assisted review, advanced analytics, or specialized processing, establishing whether these costs are justified by the efficiencies they create or whether they should be shared between the parties. Include provisions for allocating the costs of foreign language translation, audio and video transcription, and other specialized services.

Detail the allocation of production costs, including the costs of converting documents to the agreed-upon production format, generating load files, applying Bates numbers, and delivering productions. Establish whether the producing party bears all production costs or whether the requesting party must reimburse certain costs, particularly for large-volume productions. Specify the rates for any cost reimbursement, such as per-page costs for imaging or per-gigabyte costs for native productions.

Establish the parties' commitment to cooperation and proportionality in discovery, consistent with the 2015 amendments to the Federal Rules emphasizing these principles. Include specific cooperation obligations such as engaging in meaningful meet-and-confer discussions before serving discovery requests, providing transparent information about data sources and preservation efforts, accommodating reasonable requests for modifications to discovery demands, and working collaboratively to resolve technical challenges. Reference the Sedona Conference Cooperation Proclamation or similar authorities establishing best practices for cooperative discovery.

Detail meet-and-confer requirements, specifying the frequency of discovery conferences (typically monthly or quarterly during active discovery), the topics to be addressed in each conference, and the requirement to memorialize agreements in writing through stipulations or correspondence. Establish that discovery conferences should address the status of preservation efforts, upcoming productions, any technical issues or disputes, and opportunities to streamline discovery through targeted requests or phased approaches.

Include provisions for phased discovery, allowing parties to conduct discovery in stages based on case development and the results of initial discovery. Specify that parties may agree to limit initial discovery to core custodians or high-priority issues, with the understanding that additional discovery may be warranted if initial discovery proves insufficient. Establish procedures for requesting additional discovery beyond initial agreed-upon limits, requiring a showing that the additional discovery is proportional and necessary to resolve the case.

Address the potential use of sampling or statistical extrapolation to reduce discovery burden while still providing meaningful information. Specify the circumstances under which sampling may be appropriate, the methodologies for selecting representative samples, and the procedures for extrapolating findings from samples to larger populations. Include provisions for joint retention of statistical experts if sampling disputes arise.

Establish the parties' agreement to communicate openly about preservation and collection challenges, to make reasonable accommodations for technical difficulties, and to avoid gamesmanship in the discovery process. Specify that parties will not exploit technical limitations or inadvertent errors for strategic advantage, and will work in good faith to remedy any discovery deficiencies that come to light.

Dispute Resolution and Escalation Procedures

Establish a structured, multi-tiered process for resolving ESI-related disputes efficiently and without court intervention where possible. Specify that parties must engage in good faith meet-and-confer efforts before filing any discovery motion, and establish specific timeframes for initiating these discussions. Typically, a party identifying a discovery dispute must notify opposing counsel within five to seven business days and request a meet-and-confer conference to be held within an additional seven to ten business days. Require that meet-and-confer communications be conducted in good faith with a genuine effort to resolve disputes rather than simply creating a record for motion practice.

Detail the escalation process for disputes that cannot be resolved through initial meet-and-confer efforts. Establish that disputes should first be addressed by discovery counsel who are most familiar with the technical details, then escalated to lead counsel if discovery counsel cannot reach agreement, and potentially escalated to party representatives or executives if counsel-level discussions prove unsuccessful. Specify that court intervention should be sought only after all reasonable efforts at party-level resolution have been exhausted, and require parties to certify in any discovery motion that they have complied with meet-and-confer requirements.

Establish expedited briefing schedules for ESI disputes that require court resolution, recognizing that discovery delays can prejudice case timelines and that ESI disputes often involve technical issues requiring prompt resolution. Specify page limits for discovery motions and responses (typically 10 to 15 pages for motions and 10 pages for responses), and establish abbreviated response times (typically 7 to 10 days for responses and 5 days for replies). Include provisions for telephonic or video conference hearings on discovery disputes to avoid the delay and expense of in-person court appearances.

Address specific procedures for common categories of ESI disputes. For disputes regarding search term effectiveness or technology-assisted review protocols, establish that parties must exchange technical information about search performance, including hit counts, precision and recall metrics, and sample documents, and must meet and confer with their technical experts or e-discovery vendors before seeking court intervention. For disagreements over production formats or metadata fields, require parties to identify the specific technical requirements at issue and to explain why the requested format is necessary and proportional. For privilege assertion disputes, establish that parties must first attempt to resolve disagreements through supplemental privilege log information or sample document review before seeking court resolution.

Include provisions for addressing allegations of inadequate preservation or spoliation, requiring the complaining party to provide specific information about the allegedly lost or destroyed ESI, the circumstances of the loss, and the prejudice resulting from the loss. Establish that spoliation disputes will be addressed through a structured process including meet-and-confer discussions, exchange of information about preservation efforts, and potentially forensic examination of systems to determine whether ESI was lost and whether the loss resulted from bad faith or willful conduct.

Address procedures for cost-shifting requests under Rule 26(b)(2)(B), requiring the producing party to provide detailed information about the burden and cost of producing not reasonably accessible ESI, including technical descriptions of the data sources, estimates of the volume of potentially relevant information, and cost projections for collection, processing, and review. Establish that the requesting party may challenge cost-shifting requests by demonstrating that the discovery is proportional under Rule 26(b)(1) or by proposing alternative approaches such as sampling or phased production to reduce burden.

Include provisions for the potential appointment of a special master, technical expert, or mediator for complex technical disputes that the parties and court cannot efficiently resolve. Specify the procedures for proposing a special master, the qualifications required, and how the special master's fees will be allocated. Establish that parties may jointly retain a neutral technical expert to evaluate disputed technical issues and provide recommendations to the court, with the understanding that the expert's findings may not be binding but will be given substantial weight.

Specify the format for dispute resolution, whether through written submissions, telephonic conferences, or in-person hearings, and establish page limits or time limits for presentations. Include provisions for expedited discovery in aid of resolving ESI disputes, such as allowing parties to take limited depositions of IT personnel or e-discovery vendors to understand technical issues.

Establish that disputes must be raised promptly and cannot be held for strategic advantage, with provisions for waiver of objections not timely asserted. Specify that parties waive objections to search terms, production formats, or other technical specifications if they do not raise objections within a specified time after receiving notice of the proposed approach (typically 14 to 21 days). Include exceptions to waiver for objections that could not reasonably have been raised earlier, such as objections based on information learned during the review process.

Execution, Modification, and Termination Provisions

Conclude the protocol with formal execution provisions that ensure the agreement is binding and enforceable. Include signature blocks for all parties or their authorized counsel, with typed names, law firm names, business addresses, telephone numbers, email addresses, and bar numbers. Include a representation that each signatory has authority to bind their client to the terms of this protocol, and specify that the protocol becomes effective upon execution by all parties or upon entry as a court order, whichever is specified.

Establish procedures for modifying the protocol, specifying that amendments must be in writing and signed by all parties or approved by the court. Include provisions allowing for technical modifications or clarifications to be made by agreement of counsel without requiring court approval, while reserving substantive modifications for court approval. Specify that the protocol may be modified to address unforeseen technical challenges, changes in the scope of discovery, or developments in the litigation that make certain provisions impractical or unnecessary.

Address the duration of the protocol, specifying whether it remains in effect through the conclusion of the litigation including any post-trial or appellate proceedings, or whether it terminates at a specified phase such as the close of fact discovery. Include provisions for the return or destruction of produced ESI at the conclusion of the litigation, subject to any retention obligations imposed by law, regulation, or the parties' document retention policies. Specify whether parties must return or destroy all copies of produced documents including those provided to experts and consultants, or whether parties may retain a single archival copy for potential future litigation.

Include a severability clause stating that if any provision of the protocol is found unenforceable by a court, the remaining provisions remain in full force and effect. Specify that the protocol represents the complete agreement of the parties regarding ESI discovery procedures and supersedes any prior agreements or understandings, except to the extent that prior agreements are specifically incorporated by reference.

Establish that this protocol does not limit the parties' rights under the Federal Rules of Civil Procedure, and that parties may seek relief from the court for good cause shown if compliance with the protocol becomes impractical or if circumstances change substantially. Include provisions for emergency modifications if technical failures, data breaches, or other unforeseen events require immediate changes to discovery procedures.

Final Drafting Instructions

Draft this ESI Protocol in clear, precise legal language appropriate for court filing and judicial review. Use defined terms consistently throughout the document and ensure that all cross-references are accurate. Organize the protocol with numbered sections and subsections to facilitate reference and citation. Balance specificity with flexibility to accommodate unforeseen technical challenges or case developments, recognizing that ESI discovery often presents novel issues that cannot be fully anticipated at the outset of litigation.

Ensure all provisions are consistent with the Federal Rules of Civil Procedure, Federal Rules of Evidence, and applicable local rules for the jurisdiction. If local rules impose specific requirements for ESI discovery, incorporate those requirements explicitly. Cite relevant authority where appropriate, including key cases interpreting the Federal Rules, The Sedona Principles, and EDRM standards, to provide context and support for the protocol's provisions.

Prioritize proportionality and cooperation while protecting each party's legitimate discovery rights and privileges. Ensure that the protocol does not unfairly advantage one party over another, and that cost allocations and procedural requirements are balanced and reasonable. The final document should be comprehensive enough to minimize future disputes while remaining practical and implementable given the technical and financial resources available to the parties. Aim for a protocol that will be approved by the court as a reasonable framework for ESI discovery that serves the interests of justice and judicial efficiency.