Craig Ball has just published a new guide titled “The Annotated ESI Protocol”, which provides a terrific primer on how to do them!
Craig introduces The Annotated ESI Protocol with a short post here, stating “I’ve long wanted to write, ‘The Annotated ESI Protocol.’ Finally, it’s done.”
Craig states: “The notion behind the The Annotated ESI Protocol goes back 40 years when, as a fledgling personal injury lawyer, I found a book of annotated insurance policies. What a prize! Any plaintiff’s lawyer will tell you that success is about more than liability, causation and damages; you’ve got to establish coverage to get paid. Those annotated insurance policies were worth their weight in gold.”
As an homage to that “treasured” resource, Craig has sought to “boil down decades of ESI protocols to a representative iteration and annotate the clauses, explaining the ‘why’ and ‘how’ of each.” He also notes that he’s “yet to come across a perfect ESI protocol, and I don’t kid myself that I’ve crafted one.” Instead, his “goal is to offer lawyers who are neither tech-savvy nor e-discovery aficionados a practical, contextual breakdown of a basic ESI protocol–more than simply a form to deploy blindly or an abstract discussion.”
The Annotated ESI Protocol, a 32-page guide available here, provides two columns: one with Exemplar Protocol Language, and the second one with Explanation and Commentary of each section. So, the explanation for each section is provided as you go, which makes it easy to develop that understanding quickly!
As Craig notes in page 3, “a ‘clean’ version of the exemplar protocol follows as an appendix. The example defaults to clunky TIFF+ static images as the principal form of production, so it’s less efficient and economical than it could be. If you’re interested in a superior protocol with lower cost and higher functionality, simply swap in the alternative native production language discussed in the Forms of Production section below.”
So, why should you care about it? Craig addresses that too, here:
“Are ESI Protocols Compulsory?
Effectively, yes; explicitly, no. The Rules do not expressly require that the range of ESI-related topics on which counsel must engage be memorialized in an ESI Protocol; but where consensus exists, agreements should be memorialized as part of a discovery plan. So, effectively the Rules require an ESI Protocol to emerge, whether we call it that or not.”
Craig also discusses some of the FRCP rules that require parties to confer, which (of course) leads to the need for an ESI Protocol. Thanks to The Annotated ESI Protocol, more lawyers will understand how to prepare them – even Luddite lawyers!
So, what do you think? Do you have an ESI Protocol template? If not, you do now! Please share any comments you might have or if you’d like to know more about a particular topic.
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