Are ESI protocols being overused? That’s what one article is saying and here’s what you can learn from the overuse of ESI protocols.

As discussed in this article in the New York Law Journal (Lessons Learned From the Overuse of ESI Protocols, written by David Kessler, Ellen Blanchard, Esther Clovis and Hon. Andrew Peck (ret.), available here), ESI protocols are tools the Judiciary and Bar developed in the early days of eDiscovery to limit unnecessary discovery disputes and reduce discovery costs.

At their heart, ESI protocols are intended to be a voluntary agreement between the parties, which may be entered as orders by the court to improve enforcement, regarding how certain aspects of discovery should be accomplished. In exchange for voluntary transparency regarding how the responding party will conduct discovery and an agreement on specific reasonable efforts, the receiving party agrees to those efforts are reasonable and proportional limits to discovery. In theory, the requesting party gains transparency and knowledge that discovery will be done in a reasonable way, and responding parties gain cost certainty and limits on the scope of discovery.

Great, right? Well, as the article discusses, as a practical matter, as courts and practitioners have slipped into thinking such agreements are mandatory and responding parties who push back on them are obstructionist or obfuscating, ESI protocols have become a Frankenstein monster of requirements that create obligations well beyond the Federal Rules of discovery, addressing a vast array of discovery topics including search terms, privilege logs and technology-assisted review (TAR). Ironically, parties can spend more time discussing ESI protocols than they spend on document requests and productions themselves.

The article goes on to discuss several lessons that can be learned about the overuse of ESI protocols, referencing several cases (including cases here, here, here and here which were covered by eDiscovery Today and which Judge Peck commented on during webinars where we discussed them). I won’t steal the authors’ thunder – click here to check out this terrific article that discusses potential problems with ESI protocols and provides great takeaways for ensuring your ESI protocol is necessary and appropriately scoped!

So, what do you think? When is an ESI protocol appropriate and when is it not appropriate?  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 “two robot lawyers arguing about a document”.

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.