The e-discovery protocol is an often misunderstood and feared component of modern litigation, intimidating many lawyers that are not versed in the ever-evolving field of e-discovery practice. Additionally, for attorneys who do not have the requisite knowledge or experience, meeting and conferring on a protocol that governs electronically stored information (ESI) seems like an ominous task—the first in a series of minefields that a more sophisticated opponent will lay. However, e-discovery protocols need not vex so many because, when done correctly, they can save money and time, ease burdens, and ensure compliance with acceptable modes of production.
Jurists, academics and e-discovery vendors repeat the mantra that discovery is collaborative, not competitive. Indeed, the most competent e-discovery counsel seeks to work hand-in-hand with opponents rather than retreat behind a wall of secrecy and obstructionism. The late William P. Butterfield—a giant of the e-discovery world who was honored recently by the Sedona Conference—often commented that zealous advocacy of one’s client necessarily requires cooperation in discovery. One of the pinnacles of this cooperation is the agreement among parties for how they will identify, search for, process, and produce ESI. It is that agreement that becomes the e-discovery protocol, and it is those topics that the protocol addresses. The substance of the protocol is where attorneys and the clients they represent aim their cooperation, effort, and expertise.
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