Drafting an ESI Protocol seems straightforward—until it isn’t. What starts as a simple framework for handling electronically stored information can quickly become a source of costly disputes, endless revisions, and, in worst-case scenarios, court sanctions. Without a clear, well-structured protocol, legal teams can find themselves tangled in unnecessary delays, metadata fights, and production format nightmares.
The good news is that most of these pitfalls are entirely avoidable. A carefully drafted ESI Protocol doesn’t just keep discovery on track; it prevents the headaches, disputes, and wasted costs that plague so many legal teams. Here’s a step-by-step guide to making sure your ESI Protocol sets you up for success, not frustration.
Define the scope early to prevent over-preservation and unnecessary review
One of the biggest mistakes in e-discovery is failing to set clear boundaries on what data actually needs to be preserved. Too often, legal teams take a broad, catch-all approach, thinking they’re playing it safe. In reality, this leads to ballooning data volumes, higher storage costs, and an overwhelming amount of information to review.
Instead of preserving everything, an effective ESI Protocol should outline exactly what data sources, custodians, and time frames are relevant. Being specific upfront not only keeps discovery focused but also helps avoid the burden of collecting, storing, and reviewing data that has no real impact on the case.
Get metadata agreements in writing before disputes arise
Few things derail discovery faster than a last-minute fight over metadata fields. Without clear guidelines on which metadata must be included in document productions, legal teams can end up in disputes that waste time and money. One side expects full native productions with detailed metadata, while the other produces PDFs with minimal metadata, and now the case is stalled over an issue that could have been resolved at the outset.
To prevent this, an ESI Protocol should spell out exactly what metadata fields will be included, how duplicates will be handled, and whether documents will be produced in native format or as image files. Clarity upfront eliminates unnecessary disputes later.
Address privilege and redactions before documents start changing hands
Privilege review and redaction errors are costly mistakes that legal teams often don’t think about until it’s too late. If the ESI Protocol doesn’t establish clear guidelines for privilege logs, redactions, and clawback provisions, legal teams may find themselves spending hours—and significant budget—fixing preventable mistakes.
The protocol should clearly define how privileged documents will be logged, whether categorical privilege logs are acceptable, and what process will be used for redactions. It should also include a clawback provision under Rule 502(d) to ensure that an inadvertent disclosure doesn’t result in privilege waiver. Without these safeguards, teams risk privilege battles that drain time and resources.
Standardize production formats to avoid expensive do-overs
There’s nothing more frustrating than spending weeks preparing a document production only to have the receiving party initiate a discovery dispute because it wasn’t in the expected format. If the ESI Protocol doesn’t specify production standards, legal teams can find themselves doing costly re-productions, re-processing files, or going back to the court for guidance.
An airtight ESI Protocol should outline whether documents will be produced in native format, as PDFs, or with load files for e-discovery platforms. It should also specify whether OCR text, Bates numbering, and extracted metadata fields are required. Defining these details at the start eliminates unnecessary delays and ensures a smooth production process.
Don’t forget about proportionality and cost control
E-discovery costs can spiral out of control if proportionality isn’t considered early. If the ESI Protocol doesn’t include safeguards against excessive demands, one party may push for overly broad discovery that imposes significant financial burdens on the other side.
To avoid this, the protocol should include provisions that limit discovery requests to what is reasonable based on the size and complexity of the case. It should also provide a process for resolving disputes over burdensome requests without immediately resorting to court intervention. Keeping discovery proportional ensures that costs remain manageable for all parties.
A strong ESI Protocol prevents problems before they start
Most e-discovery issues don’t happen by accident—they happen because something was left unclear or undefined. A well-drafted ESI Protocol eliminates ambiguity, sets clear expectations, and keeps discovery moving efficiently. By defining scope, agreeing on metadata and production formats, addressing privilege and redaction upfront, and ensuring proportionality, legal teams can prevent costly mistakes before they happen.
E-discovery is complicated enough without adding unnecessary disputes to the mix. Taking the time to craft a detailed, thoughtful ESI Protocol saves time, reduces costs, and keeps discovery on track from the start.
