A well-drafted ESI Protocol is the foundation of a smooth and defensible e-discovery process. Yet, too often, legal teams rush through negotiations or overlook critical details, leading to disputes, delays, and unnecessary costs. When metadata requirements are vague, production formats are inconsistent, or privilege protections are incomplete, discovery quickly becomes more complicated and expensive than it needs to be.
For litigators and legal operations professionals, mastering ESI Protocols isn’t just about checking a box—it’s about ensuring efficiency, reducing risk, and setting clear expectations upfront. A strong protocol prevents unnecessary motion practice, eliminates rework, and keeps discovery on track. Here’s a practical checklist to ensure your ESI Protocol is built for success.
ESI Protocols Start with Defined Preservation Scope
Over-preservation inflates data volumes, review times, and costs. Under-preservation risks sanctions. Avoid both by identifying custodians, timeframes, and data sources (email, chat, mobile, cloud storage). Be sure to address auto-deleting content and collaboration platforms.
For emerging guidance, the Sedona Conference offers excellent best practices on preservation obligations.
Standardize metadata fields to avoid discovery disputes
Metadata fights are a common—and avoidable—source of e-discovery conflict. Without clear agreement on what metadata fields must be produced, parties often end up in disputes that slow down discovery and increase costs.
An effective ESI Protocol should list the exact metadata fields required, including document title, author, creation and modification dates, email metadata, and custodian information. Consistency in metadata production ensures that both parties receive the necessary information without unnecessary back-and-forth.
Clarify Document Production Formats in the ESI Protocol
One of the most frustrating (and expensive) mistakes in e-discovery is failing to define production formats in advance. If one party expects native files and the other provides PDFs, disputes over re-production are almost inevitable.
The protocol should state whether documents will be produced in native format, PDFs, or with load files for e-discovery platforms. It should also address OCR text requirements, Bates numbering, and how spreadsheet or multimedia files will be handled. A clear production format eliminates confusion and ensures both parties are aligned before data exchange begins.
Establish Privilege and Redaction Procedures to Avoid Last-Minute Issues
Privilege review is one of the most time-consuming aspects of discovery, and failing to plan for it can result in costly mistakes. Without a clear clawback provision, inadvertent disclosures can lead to privilege waiver disputes, increasing litigation risks.
A strong ESI Protocol should include a Federal Rule of Evidence 502(d) clawback provision to protect against privilege waiver. It should also outline how privilege logs will be prepared, whether categorical privilege logs are acceptable, and how redacted documents will be labeled and shared. These details ensure privilege issues don’t create unnecessary roadblocks later in the discovery process.
Use ESI Protocols to Set Rolling Production Deadlines
Discovery rarely happens in a single production. Large-scale matters often require rolling productions, but if there’s no agreement on timing, the process can become chaotic.
The protocol should define expectations for rolling productions, including frequency, deadlines, and how supplemental productions will be handled. It should also clarify whether privilege logs will be produced alongside rolling productions or delivered separately at the end of discovery. Setting a clear schedule prevents disputes over timing and ensures a steady workflow.
Align on Search Terms and TAR in Your ESI Protocol
Search methodology can significantly impact review scope and cost. The ESI Protocol should define how search terms will be negotiated and whether either side plans to use technology-assisted review (TAR). Agreeing on a process to validate terms or TAR results up front avoids future objections.
Address Modern Communication Tools in the ESI Protocol
Modern litigation involves more than email. Messaging platforms, mobile data, and collaboration tools are now common sources. If Slack, Teams, or similar platforms are involved, address how threaded messages will be preserved and produced. Planning ahead avoids data gaps that could lead to disputes.
Address Post-Litigation Data Retention and Disposal
When litigation ends, what happens to the data? Define whether materials will be destroyed, returned, or retained—and how long they’ll be kept. This step supports data security, minimizes costs, and ensures compliance.
A Well-Crafted ESI Protocol is a Roadmap to Success
A clear, detailed ESI Protocol isn’t just good practice, it’s essential to a defensible, cost-effective discovery process. By setting expectations on preservation, format, metadata, privilege, timelines, and more, legal teams avoid the most common sources of friction. The result? A discovery process that’s more predictable, more efficient, and better aligned with the needs of the business.
