Extract from Christopher Boehning and Daniel J. Toal’s article “Analyzing ESI Protocol, Court Orders Manual Document Review”
The next time you attend a conference or working group meeting on the topic of e-discovery, ask attendees what they consider the most contentious issue between parties in e-discovery practice today. Even as you are being escorted off the dais for disrupting the proceedings, you may hear a popular answer—“ESI protocols.”
Under Federal Rule of Civil Procedure 26(f), as amended as part of the 2006 package of e-discovery amendments to the Federal Rules, parties must develop a “proposed discovery plan,” which “must state the parties’ views and proposals on…any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.”
Agreements between parties with details on management of electronically stored information, or “ESI,” are often referred to as “ESI protocols,” and they may, in some cases, be entered as an order by a court. Some courts provide model ESI protocols as a starting point for discussion between parties.
We previously have written about ESI protocols, the developing law and practice around them, and their importance in matters. Our guidance notwithstanding, as your impromptu survey might demonstrate, ESI protocols still remain a thorny issue on “both sides of the v.”
A recent decision helps illustrate this, where, in a discovery dispute over what was actually agreed to in an ESI protocol, a court ordered a party to proceed with a manual document-by-document review of search hits.