Extract from Kelly Twigger’s article “ESI Protocols Part VII: Form of Production, Why it’s Crucial and What to Include”
The following is Part VII in a multi-part series on how to draft and leverage an ESI protocol in any litigation. Part I of our series discussed the When, How and Why in planning for and creating your ESI protocol. Part II addressed the Key Components of an ESI Protocol, Part III walked through the Top 10 Situations You Can Avoid with a Protocol, and Part IV discussed Planning for the Production of Social Media. Part V covered the importance of including Manner of Production in your protocols. Part VI discussed the value of metadata and what to ask for.
In conjunction with this series, eDiscovery Assistant has created a new section in Checklists and Forms titled ESI Protocols that will include new content with each part of this series. That section includes sample ESI protocols, checklists on what to include and a list of metadata fields for inclusion in your protocol.
If you’ve drafted an ESI protocol, you know that form of production—i.e. the format in which you agree to receive data for each type of ESI at issue—is one of the main reasons that protocols are so key. Absent a written agreement on form of production, or specific instructions in the requests for production, Rule 34 of the Federal Rules of Civil Procedure allows a producing party to produce data in any reasonable format.
