The preservation and collection of potentially relevant electronically stored information (ESI) is daunting, no matter the size or scope of your case. With ever-increasing sources of ESI to manage, including mobile device applications, structured data, ephemeral messages, multimedia, and messaging platforms, clients need a bespoke discovery plan that is thoughtful and targeted in order to keep costs manageable and discovery processes efficient.

Consider, therefore, the important strategic advantage that may be gained by implementing an ESI stipulation or protocol early on in the discovery process to help clients better manage their data and spend. Though not required in many jurisdictions, such an agreement can provide predictability and transparency in discovery efforts, and generally reduce the likelihood of costly, time-consuming discovery disputes. There is no one-size-fits-all model when crafting such an agreement, but counsel for the producing party is typically best situated to evaluate their client's data map and determine what needs to be retained, collected, and reviewed, as well as how such data should be produced.

There are a wide range of potential challenges that arise when negotiating an ESI agreement (too many for a single article), but here we examine some of the more common issues encountered and provide practical tips to help address these considerations.