Negotiating an ESI Protocol may not top the list of exciting litigation tasks, but it’s a critical step in streamlining e-discovery workflows and avoiding costly mistakes. A weak or vague protocol can derail timelines, balloon costs, and invite motion practice.
To avoid these pitfalls, legal teams must go beyond templates and focus on high-impact clauses that reduce risk, improve compliance, and set the foundation for a defensible, efficient discovery process.
This guide outlines key clauses you should never overlook—and how using legal automation tools can help ensure your protocol is airtight.
Scope of Preservation: Setting Clear Boundaries Early
One of the earliest—and most important—decisions in ESI negotiations is determining what data needs to be preserved. Without clear boundaries, teams often default to over-preserving everything. This leads to massive data sets, rising review costs, and unnecessary burdens on clients.
At the same time, preserving too little data risks spoliation and potential sanctions. To strike the right balance, your protocol should name specific custodians, date ranges, and data sources. It should also include dynamic sources like Slack or Teams, which are often forgotten. Clear parameters at the outset help avoid later disputes and keep discovery on track.
Metadata Fields: Avoiding Fights Over What Matters
Metadata fights are among the most common—and preventable—discovery disputes. Without clear agreement, parties can fall into endless debates about formatting, missing fields, or the need to re-produce documents
To avoid this, your protocol should clearly list which metadata fields will be included in productions. Common examples include document title, author, creation and modification dates, and key email metadata. Clarifying these details early ensures consistency and reduces friction later.
Production Format: Standardizing to Prevent Do-Overs
Producing documents in the wrong format can derail your timeline. If the opposing party rejects your format and demands another, you might have to start over—wasting time and money.
A good protocol removes this risk by specifying format requirements from the start. Decide whether documents will be produced natively, as PDFs, or with load files. Be sure to address OCR text, Bates numbers, and any special treatment needed for spreadsheets, media, or databases. Setting these rules early avoids confusion and delays later on.
Clawback Agreements: Protecting Against Inadvertent Disclosures
Even the most thorough review process isn’t foolproof. When privilege mistakes happen, a strong clawback clause can prevent disaster.
Your protocol should include a Federal Rule of Evidence 502(d) provision to ensure inadvertent disclosures don’t lead to privilege waivers. It should also define how parties will notify each other and return or destroy privileged documents. These simple protections can save you from complex privilege disputes down the road.
Redaction Protocols: Avoiding Costly Inconsistencies
Redactions are another area where a lack of clarity leads to costly mistakes. If parties don’t agree on redaction standards, one side may redact more aggressively than necessary, leading to disputes over whether too much information was withheld. Alternatively, inconsistent redactions can expose sensitive or privileged information, requiring costly rework and potentially damaging a client’s position.
The protocol should define what types of information may be redacted (such as privileged communications, personally identifiable information, or trade secrets) and set guidelines for how redactions should be applied. It should also clarify whether metadata associated with redacted documents will be produced and how redacted documents will be labeled. Addressing these details in advance ensures consistency and prevents unnecessary disputes.
Rolling Productions in ESI Protocols: Staying on Track
Discovery rarely happens all at once. Large-scale document productions often take place in phases, but without clear expectations, rolling productions can create confusion and inefficiencies. One party may produce documents inconsistently, leading to disputes over completeness and timing.
The ESI Protocol should set expectations for rolling productions, including deadlines, frequency, and how supplemental productions will be handled. It should also address whether privilege logs will be produced alongside rolling productions or at the end of discovery. Establishing a structured approach helps keep discovery on track and prevents unnecessary motion practice over production timing.
Incorporating Emerging Data Sources into Your ESI Protocol
Traditional discovery workflows were built around email and office documents, but modern litigation increasingly involves data from cloud-based tools, messaging apps, and collaboration platforms. If the protocol doesn’t address these sources, parties may struggle to collect, review, and produce relevant information, leading to unnecessary motion practice or even spoliation claims.
Your ESI Protocol should specify how newer data sources—such as Slack, Teams, or mobile device data—will be preserved, reviewed, and produced. It should also address how search terms and date filters will be applied to these sources to ensure reasonable and defensible discovery efforts.
A Well-Negotiated Protocol Prevents Problems Before They Start
An ESI Protocol isn’t just another procedural step—it’s a crucial document that can determine whether discovery proceeds efficiently or becomes a drawn-out battle. By focusing on key clauses such as preservation scope, metadata requirements, production formats, clawback agreements, redactions, rolling productions, and emerging data sources, legal teams can minimize disputes, reduce costs, and ensure a defensible discovery process.
The best ESI Protocols don’t just check a compliance box—they serve as a roadmap for a smooth and efficient e-discovery process. Taking the time to negotiate these critical details upfront saves time, money, and frustration for everyone involved.
