H. Christopher Boehning and Daniel J. Toal: Federal Rules Define Obligations of Discovery, ESI Protocols Set Contours

Extract from H. Christopher Boehning and Daniel J. Toal’s article “Federal Rules Define Obligations of Discovery, ESI Protocols Set Contours”

In the early days of e-discovery, what is now commonly called an ESI protocol was usually a relatively short document that specified the agreement between the parties on format for production of electronically stored information (ESI). Other than technical specifications for production images and load files, there was little in the way of detail for how parties would approach the various steps in the discovery process. Today, that has changed. Many ESI protocols cover topics that run the gamut of discovery, from custodians to privilege to production. And many purport to set forth the parties’ obligations relating to search and retrieval methodologies—topics that are often a subject of disagreements and motion practice.

A recent decision from Magistrate Judge Katharine Parker of the Southern District of New York provides guidance concerning the appropriate interplay between ESI protocols and the Federal Rules of Civil Procedure. Magistrate Judge Parker reminds parties that although ESI protocols may set the contours of discovery, the parties’ obligations to conduct reasonable searches during discovery flow from the Rules themselves.

‘Raine v. Reign’

In Raine Grp. v. Reign Capital, 2022 WL 538336 (S.D.N.Y. Feb. 22, 2022), the plaintiff, “a merchant bank with over 100 employees,” sued defendant “Reign Capital LLC, a two-person real estate development and management firm, for trademark infringement and unfair competition based on Defendant’s” name.

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