ESI Protocol 101

A Tale of Two Perspectives
• Kimberly Scott is a partner at Miller, Canfield, Paddock & Stone where she specializes
in antitrust law; sports, media and entertainment law; and commercial contract and
tort litigation. She also handles complex commercial litigation discovery as well as
electronically stored information management issues. Contact Kimberly at
• Mark Manoukian has spent the last 18 years in legal IT at Kegler, Brown. He is a
steering committee member for ILTA’s Emerging Technologies Peer Group and has
previously served as the peer group’s vice president. Mark frequently gives
presentations and writes about legal technology. He can be contacted at
• Cindy MacBean, is a highly experienced litigation support professional who has
managed litigation support in both corporate legal departments and an Am Law 100
law firm. She is a member of ILTA's Litigation and Practice Support Peer Group
Steering Committee. Contact Cindy at
ESI Protocol
• Agreement between parties with or without
Court participation that governs the who,
what, when and how of Discovery activities
• What data sources that are going to be produced
• When key Discovery dates are scheduled
• How data is going to be produced
ESI Protocol
May be incorporated in a Discovery Plan, a completely negotiated
agreement about due dates and deliverables – that is 90% attorney
The ESI Protocol discusses the deliverables for discovery production
that includes the negotiated items from a overall perspective that is
an attorney document with significant input from IT / Lit Support
Logistical details that is mostly technical but needs to be agreed
to, fields, formats, etc. Usually every party makes sure their
technical interests are covered.
Common to ALL Venues
• Federal Court has defined a Discovery Plan that is due
about the time the parties complete the 26(f)
• Some state courts mimic the Federal Rule
• Other state / county courts may or may not have rules
• Other forums, like Arbitration, can have voluntary
Discovery Plan
Discovery Plan – Components
Case Information
Overall Timeframe
Discovery Needed
Mandatory Disclosures
ESI Disclosures
Stipulation re: Privilege
• Completion of Discovery
• Interrogatories
• Request for Admission
• Depositions
• Date of Expert Disclosures,
Supplementations and Challenges
• Clawback Agreements
• Protective Orders
• Other Items
Negotiated Terms of
Discovery Productions
Production of Hard Copy Documents
Production of ESI
Production of Proprietary Files
Special formatting for Excel, Word, PowerPoint files
Rolling or one-time production
Non-Party Productions
Good Faith Negotiation
Process to fine-tune agreements
Nitty-Gritty Details
Exact specifics and formats of files and load files
Email production specifics
Native / Tiff image productions
Hard Copy & Metadata fields to be produced
Text files to be included and format
Log file formats for excepted files
Protected Documents
The Reality of the Protocol
• When is IT / Lit Support engaged?
• Leading up to the Discovery Plan / 26(f)
• When discussion / negotiating the
discovery agreements
• Productions begin
Attorney | IT Perspectives
• What do you worry about ?
• Where is your focus ?
• What logistical concerns do you have ?
• What details do you need to communicate ?
• Eastern District of Michigan’s Model Order Relating to the
Discovery of Electronically Stored Information (ESI) Checklist for
Rule 26(f) Meet and Confer Regarding ESI:
• Northern District of California’s Guidelines for the Discovery of
Electronically Stored Information; ESI Checklist for use during the
Rule 26(f) meet and confer process; and Model Stipulated Order
Re: The Discovery of Electronically Stored Information:
• District Court of New Hampshire’s Discovery Plan: