Avoiding ESI pitfalls is critical to successful e-discovery. A vague or incomplete protocol can cause delays, disputes, and even sanctions. With a clear, well-drafted ESI protocol, your team can prevent costly errors and maintain control over the discovery process. This guide walks you through the essential steps to get it right from the start.
Define Scope Early: Avoiding ESI Pitfalls in Preservation
Over-preserving data is one of the biggest mistakes legal teams make. Some teams try to collect everything “just in case.” That leads to higher storage costs and unnecessary review.
Instead, define what matters. Set clear rules about relevant custodians, data sources, and timeframes. Narrowing the scope saves time and makes discovery manageable.
Avoiding ESI Pitfalls in Metadata Agreements
Few things derail discovery faster than a last-minute fight over metadata fields. Without clear guidelines on which metadata must be included in document productions, legal teams can end up in disputes that waste time and money. One side expects full native productions with detailed metadata, while the other produces PDFs with minimal metadata, and now the case is stalled over an issue that could have been resolved at the outset.
To prevent this, an ESI Protocol should spell out exactly what metadata fields will be included, how duplicates will be handled, and whether documents will be produced in native format or as image files. Clarity upfront eliminates unnecessary disputes later.
Privilege & Redactions: Key to Avoiding ESI Pitfalls
Mistakes in privilege review and redaction can be costly. Without clear instructions, teams risk disclosing sensitive material or producing inconsistent logs.
The protocol should clearly define how privileged documents will be logged, whether categorical privilege logs are acceptable, and what process will be used for redactions. It should also include a clawback provision under Rule 502(d) to ensure that an inadvertent disclosure doesn’t result in privilege waiver. Without these safeguards, teams risk privilege battles that drain time and resources.
Standardize Production Formats to Avoid Costly Rework
When production formats are undefined, disputes can arise, and teams may need to redo work. A receiving party might reject files that do not match their expectations, leading to delays or court involvement.
To avoid this, the ESI protocol should spell out production standards: whether documents are produced in native format or as PDFs, what load files are needed, and whether Bates numbers, OCR text, and extracted metadata are required. Setting these details early prevents costly rework.
Consider Proportionality to Control Costs
E-discovery costs can spiral out of control if proportionality isn’t considered early. If the ESI Protocol doesn’t include safeguards against excessive demands, one party may push for overly broad discovery that imposes significant financial burdens on the other side.
To avoid this, the protocol should include provisions that limit discovery requests to what is reasonable based on the size and complexity of the case. It should also provide a process for resolving disputes over burdensome requests without immediately resorting to court intervention. Keeping discovery proportional ensures that costs remain manageable for all parties.
A strong ESI Protocol prevents problems before they start
Most e-discovery issues don’t happen by accident, they happen because something was left unclear or undefined. A well-drafted ESI Protocol eliminates ambiguity, sets clear expectations, and keeps discovery moving efficiently. By defining scope, agreeing on metadata and production formats, addressing privilege and redaction upfront, and ensuring proportionality, legal teams can prevent costly mistakes before they happen.
E-discovery is complicated enough without adding unnecessary disputes to the mix. Taking the time to craft a detailed, thoughtful ESI Protocol saves time, reduces costs, and keeps discovery on track from the start.
