Lessons Learned From the Overuse of ESI Protocols
ESI protocols have become a Frankenstein monster of requirements that create obligations well beyond the Federal Rules of discovery, addressing a vast array of discovery topics including search terms, privilege logs and technology-assisted review. What lessons can we take away from the overuse of ESI protocols?
January 05, 2024 at 10:00 AM
10 minute read
While not found in the Federal Rules of Civil Procedure (FRCP), ESI protocols are tools the Judiciary and Bar developed in the early days of e-discovery to limit unnecessary discovery disputes and reduce discovery costs.
At their heart, ESI protocols are intended to be a voluntary agreement between the parties, which may be entered as orders by the court to improve enforcement, regarding how certain aspects of discovery should be accomplished. In exchange for voluntary transparency regarding how the responding party will conduct discovery and an agreement on specific reasonable efforts, the receiving party agrees to those efforts are reasonable and proportional limits to discovery. In theory, the requesting party gains transparency and knowledge that discovery will be done in a reasonable way, and responding parties gain cost certainty and limits on the scope of discovery.
While nice in theory, as a practical matter, as courts and practitioners have slipped into thinking such agreements are mandatory and responding parties who push back on them are obstructionist or obfuscating, ESI protocols have become a Frankenstein monster of requirements that create obligations well beyond the Federal Rules of discovery, addressing a vast array of discovery topics including search terms, privilege logs and technology-assisted review (TAR). Ironically, parties can spend more time discussing ESI protocols than they spend on document requests and productions themselves.
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