Planning for Your Case Includes Drafting an ESI Protocol Early: eDiscovery Best Practices

Just like you never get a second chance to make a first impression, you never get a second chance to plan for your case, so doing so as early as possible is key to success.  As this recent article from Forensic Discovery discusses, that early planning includes a thoughtfully drafted ESI Protocol to define how discovery will be conducted.

Their article ESI Protocols Are Your Chance to Get Your Case Off on the Right Track discusses something we’re all familiar with – the Rule 26(f) Case Management Conference, also known as the “Meet and Confer”, which is the best opportunity to get on the same page with opposing parties regarding how to conduct discovery. The meet and confer is expected to be conducted “at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)”, which means it should be conducted as soon as 65-70 days after the case is filed.  That’s not a lot of time to prepare for discovery in the case.

Going into the meet and confer fully prepared includes understanding your potentially responsive sources of data and where they’re located and any challenges that may exist with those sources of data. It also includes anticipating what potentially responsive data your opponent might have and whether you may need to subpoena third parties to support your case.  And it includes drafting a well-planned ESI protocol, working with an expert to make sure the ESI protocol addresses everything to make the discovery process as smooth as possible.  You don’t want to find out in court that your ESI protocol failed to account for a form of data like the plaintiffs did in this case.


So, what elements should be included in an ESI protocol?  If you don’t know, check out their article here to find that out – and more.  It could help you avoid disaster in your own case.

So, what do you think?  Do you negotiate an ESI protocol with opposing parties in your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclosure: Forensic Discovery is an Educational Partner and sponsor of eDiscovery Today

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.


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