If you think an ESI Protocol and Discovery Plan are the same, Michael Berman has a terrific in-depth article that will convince you otherwise!

In his article (“ESI Protocol” v. “Discovery Plan”, available here from his terrific E-Discovery LLC site), Michael notes this:

“ESI Protocols” are discussed in judicial opinions, articles, webinars, and blogs.  They are flexible and useful; however, they may not meet all of the requirements of Fed.R.Civ.P. 26(f).  After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan” that contains information that may not be in an ESI Protocol.

Regardless whether you favor ESI Protocols and think they should be incorporated into a court order (like Michael) or think they’re costly, delaying devices that lead to incessant negotiations with little accomplished and potentially lead to sanctions, you’ll want to read Michael’s discussion that compares an ESI Protocol and Discovery Plan.

Michael cites to several terrific resources on ESI protocols and he declares that a tailored, written agreement – an “ESI Protocol” – is almost always a good idea and the resources he cites are really good frameworks.  However, depending on the content, if there has been a Rule 26(f) conference, more may be needed.

In fact, while Rule 26(f) mandates a discovery plan, there is no mention of an “ESI protocol” in the rules anywhere. The closest reference to it may be (via Tom O’Connor) the 2006 Advisory Committee Note to Rule 26: “Parties may attempt to minimize these costs and delays by agreeing to protocols that minimize the risk of waiver.”  [emphasis added].

Michael goes on to discuss what is required in a discovery plan per Rule 26(f)(3) and potential approaches to addressing both an ESI protocol and discovery plan. I won’t steal his thunder – check out his article here!

So, what do you think? Did you think an ESI Protocol and Discovery Plan are the same? Now, you know better! Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4’s Image Creator Powered by DALL-E, using the term “robot evaluating two documents on a scale”.

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.