ESI Protocols and the Meet and Confer Process
Cooperation between parties in ediscovery is essential to streamlining the discovery process and reducing disputes by fostering transparency, promoting efficiency in data exchange, and minimizing unnecessary motion practice, ultimately saving time and costs for all parties involved.
ESI protocols and the meet and confer process are important mechanisms to achieve cooperation between those parties. A well-structured ESI protocol, developed through a productive meet and confer, enhances transparency, reduces ambiguities, and ensures that ediscovery efforts align with both legal obligations and business realities.
The process of ediscovery can be complex and costly. Without clear guidelines and a cooperative approach, parties can find themselves bogged down in disagreements over data scope, formats, and accessibility. This is where the meet and confer process, mandated by procedural rules like FRCP Rule 26(f), becomes critical. It provides a structured environment for legal teams to proactively address potential challenges, share insights into their data landscapes, and reach mutually agreeable terms for the exchange of electronically stored information.
Through effective negotiation during the meet and confer, parties can formalize their agreements in an ESI protocol. This detailed document serves as a roadmap for the technical aspects of discovery, setting expectations for everything from data preservation to production formats. By laying out these parameters upfront, the ESI protocol helps to prevent future misunderstandings, reduce the need for costly court interventions, and ensure a more efficient and defensible discovery workflow for all involved.
Overview of the Meet and Confer Process
Since 2006, parties have been expected to meet and confer under Federal Rule of Civil Procedure 26(f), allows opposing parties to collaboratively discuss and negotiate key ediscovery issues, such as data sources, scope of discovery, formats of production, privilege protections, and the use of technology-assisted review (TAR). This section provides an overview of the meet and confer process, including applicable rules, when parties are expected to meet and confer and best practices for ensuring a smooth meet and confer process.
Federal Rule of Civil Procedure 26(f)
Here’s what Rule 26(f) says regarding the parties’ obligation to meet and confer regarding the handling of discovery:
(f) Conference of the Parties; Planning for Discovery.
(1) Conference Timing. Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).
(2) Conference Content; Parties’ Responsibilities. In conferring, the parties must consider the nature and basis of their claims and defenses and the possibilities for promptly settling or resolving the case; make or arrange for the disclosures required by Rule 26(a)(1); discuss any issues about preserving discoverable information; and develop a proposed discovery plan. The attorneys of record and all unrepresented parties that have appeared in the case are jointly responsible for arranging the conference, for attempting in good faith to agree on the proposed discovery plan, and for submitting to the court within 14 days after the conference a written report outlining the plan. The court may order the parties or attorneys to attend the conference in person.
(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:
(A) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement of when initial disclosures were made or will be made;
(B) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused on particular issues;
(C) any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced;
(D) any issues about claims of privilege or of protection as trial-preparation materials, including—if the parties agree on a procedure to assert these claims after production—whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502;
(E) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and
(F) any other orders that the court should issue under Rule 26(c) or under Rule 16(b) and (c).
(4) Expedited Schedule. If necessary to comply with its expedited schedule for Rule 16(b) conferences, a court may by local rule:
(A) require the parties’ conference to occur less than 21 days before the scheduling conference is held or a scheduling order is due under Rule 16(b); and
(B) require the written report outlining the discovery plan to be filed less than 14 days after the parties’ conference, or excuse the parties from submitting a written report and permit them to report orally on their discovery plan at the Rule 16(b) conference.
State Rules
Many U.S. states have adopted rules in their civil procedure that are equivalent or similar to FRCP Rule 26(f). For example, states like Alabama, Arizona, and Utah have implemented provisions that closely mirror the federal rule, requiring parties to confer early in the litigation to discuss discovery matters.
However, the adoption and specifics of such rules can vary significantly from state to state. Some states have rules that are functionally similar but may differ in terminology or procedural requirements, while others may not have a direct equivalent. It’s important to consult the specific rules of civil procedure in your state to determine their particular requirements regarding pretrial conferences and discovery planning. Because of its applicability to overall ediscovery best practices, the discussion of best practices in this section will be focused on expectations under FRCP Rule 26(f).
When to Meet and Confer
In federal civil litigation, parties are required to meet and confer early in the case as part of the Rule 26(f) conference, which must take place at least 21 days before the Rule 16(b) scheduling conference or the issuance of a scheduling order by the court. FRCP Rule 26(f) obligates parties to discuss important aspects of discovery, including the scope, preservation of ESI, privilege issues, and the format of production. The goal is to promote efficiency, reduce disputes, and ensure a well-structured discovery process. Following this conference, the parties must submit a Joint Discovery Plan to the court outlining their agreements and any remaining disagreements regarding discovery.
Additionally, courts have ordered parties to meet and confer on specific disputes to attempt to resolve them before bringing those disputes to the court and have also denied motions based on a party’s failure to meet and confer first. Courts expect cooperation between parties and the meet and confer process has become a go-to for promoting that cooperation.
Best Practices for Conducting a Meet and Confer
A truly effective meet and confer is more than just a procedural box to check; it’s an opportunity to proactively identify potential roadblocks, explore creative solutions for data exchange, and establish a cooperative tone that can ripple through the rest of the case, minimizing future disputes and fostering a more predictable discovery timeline.
Approaching this critical discussion with forethought and a clear understanding of both your client's data landscape and the overarching goals of the litigation can significantly influence the efficiency and cost-effectiveness of discovery.
Prepare in Advance
Going into the conference of the parties required under FRCP Rule 26(f) dictates considerable preparation to understand case considerations, identify data sources, understand potential technical challenges associated with discovery, and anticipate potential areas of dispute. Best practices include:
Review the case pleadings, discovery rules, and any prior court orders that may impact discovery.
Identify key custodians (through custodian interviews) and data sources early, including email servers, databases, mobile devices, and cloud platforms.
Coordinate internally with IT, legal, and records management teams to understand the technical aspects of data retrieval and production.
Determine potential areas of dispute (e.g., search terms, privilege logging, production format) and develop reasoned positions.
Establish Clear Objectives
The goal of the meet and confer is to establish clear objectives regarding the scope of discovery and preservation of ESI to support discovery, ensure that discovery is conducted proportionately to the needs of the case, and to set expectations regarding format of production:
Agree on the scope of discovery, including relevant timeframes, custodians, and data types.
Address data preservation obligations, including issuing litigation holds and discussing potential sources of inaccessible or deleted data. As discussed in the Legal Holds chapter, the scope of data preservation may change over the lifetime of the case.
Address any proportionality concerns early to minimize the potential for overly broad or burdensome discovery requests, being prepared to object with specificity if the parties can’t agree on scope.
Negotiate the format of production (e.g., native, TIFF, or PDF) and metadata fields to be included.
Discuss Privilege and Confidentiality Issues
Issues related to privilege and confidentiality are among the most important topics to address during the meet and confer.
Establish guidelines for privilege logs, including considering the use of categorical logs to reduce unnecessary burdens.
Pursue a clawback agreement under Federal Rule of Evidence 502(d) to protect against inadvertent disclosure of privileged material.
Discuss protective orders if dealing with confidential, sensitive or proprietary information.
Address Search Methodologies and Review Strategies
Review is the most expensive phase in the ediscovery lifecycle, so it’s useful to address search methodologies and review strategies to ensure a proportional search and review process.
Negotiate the use of search terms, date filters, and keyword refinement to limit overcollection. It’s generally recommended to anticipate potential search terms and date ranges opposing counsel may request and test them to understand how they will impact the scope of discovery before agreeing to them.
Discuss whether TAR or AI-driven methods for document review will be used and, if so, the level of transparency needed in disclosing results of those processes to opposing counsel.
Discuss how messages from text and chat app messaging apps will be handled, including the scope of review and production and what will be considered a “conversation” within those apps.
Document Agreements and Follow Up
It’s important to document any agreements to memorialize them and identify any issues which remain and the process for resolving them.
Memorialize key agreements in a written Joint Discovery Plan and/or ESI Protocol to avoid later disputes.
If disagreements remain, clarify which issues need court intervention or further negotiation.
Set up a timeline for follow-up discussions to reassess discovery progress and resolve any emerging issues.
Case Law Rulings Related to the Meet and Confer Requirement
There are regular case law rulings where courts either order parties to meet and confer about a particular issue (or set of issues), or they deny a motion for failing to meet and confer about an issue. Here are five rulings related to the meet and confer requirement:
In re Actos End Payor Antitrust Litig., No. 13–CV–9244 (RA) (S.D.N.Y. March 30, 2022)
In an order where the Court ordered one of the parties to produce lesser included email in a chain, the parties were also ordered to to meet and confer on privilege logs, related to the email threading issue.
Anstead v. Va. Mason Med. Ctr., No. 2:21-cv-00447-JCC-JRC (W.D. Wash. Sept. 23, 2022)
Here, the Court denied defendants’ motions to compel, for sanctions, and for a protective order without prejudice, stating that defendants “may re-file these motions at a future date after a good faith attempt to meet and confer has taken place.”
Boulder Falcon, LLC v. Brown, No. 2:22-cv-00042-JNP-JCB (D. Utah March 28, 2023)
In this case, the Court denied the defendants' motion for sanctions and granted the plaintiff's motion for a protective order, finding that the defendants' counsel acted in bad faith during the deposition of the plaintiff’s president and failed to meet and confer regarding confusion over the plaintiff’s load file format production.
Humanmade v. SFMade, No. 23-cv-02349-HSG (PHK) (N.D. Cal. July 10, 2024)
Here, the Court ordered the parties to meet and confer regarding a dispute over seven search terms, established a procedure for clawback of privileged documents to expedite production, and required lead counsel for both parties to submit a declaration to address contradictory representations of what happened during previous meet and confers.
We the Protesters, Inc. v. Sinyangwe, No. 22 Civ. 9565 (JPC) (GS) (S.D.N.Y. Dec. 18, 2024)
In this case, the Court noting the parties agreement regarding discovery of text messages was “less than complete”, ordered that “Plaintiffs must produce unredacted versions of non-privileged text messages” within the days for which text messages were produced and also ordered the parties to meet and confer regarding the handling of Highly Sensitive Text Messages.
The Role of ESI Protocols
ESI Protocols establish clear guidelines for the identification, preservation, collection, processing, review, and production of ESI, helping to minimize disputes and ensuring that parties adhere to best practices. By proactively addressing these matters early, organizations can minimize the potential for costly motion practice, reduce the risk of spoliation or noncompliance, and streamline document review and production.
Difference Between Joint Discovery Plan and the ESI protocol
Many people refer to the Joint Discovery Plan and ESI protocol synonymously, but they are not the same – they are related but distinct documents in federal civil litigation.
The Joint Discovery Plan, required under FRCP Rule 26(f), is a broad document outlining the parties' agreements and proposed procedures for the entire discovery process. It typically covers topics such as discovery scope, timing, methods, privilege issues, and potential disputes.
The ESI protocol isn’t required under any FRCP rule; however, it has become a best practice to promote cooperation and minimize disputes in federal civil cases. The ESI protocol is a more detailed, often separate agreement specifically addressing ESI. It defines how ESI will be identified, preserved, collected, searched, reviewed, and produced. The ESI protocol usually includes provisions for metadata fields, de-duplication methods, production format (e.g., PDF, native files, TIFF), handling of privileged materials, and use of TAR or other AI-assisted review processes.
While the ESI protocol can be part of the Joint Discovery Plan, in complex cases, it is often negotiated separately to ensure more detailed and technical ediscovery considerations are addressed.
Best Practices and Considerations for Drafting and Negotiating an ESI Protocol
While ESI protocols are key to minimizing the potential for disputes and ensuring that parties adhere to best practices, a badly negotiated ESI protocol can put your organization “behind the eight ball” in discovery. When it comes to preparing and negotiating an ESI protocol, here are certain best practices and considerations to keep in mind:
Develop a Template for ESI Protocols
Chances are, unless your organization is rarely involved in litigation, you will need to address several considerations related to discovery again and again. Reinventing the wheel each time does not lead to a consistent ediscovery process or workflow. It’s important to develop a template for ESI protocols designed to serve your organization’s needs that will serve as a starting point for negotiation.
Of course, your opponent may have their own template with parameters designed to serve their needs. Not having your own template puts you at a disadvantage in negotiations with that opponent, so develop your own ESI protocol template that sets the stage for negotiations in your cases.
Keep Your ESI Protocol Template Evergreen
Having an ESI protocol template is a great idea. Failing to adjust your ESI protocol as data sources or ediscovery parameters change is not much better than not having a template at all. In the case Nichols, et al. v. Noom Inc., et al. in 2021, the ESI protocol negotiated by the parties failed to address the process for handling hyperlinked files, which put the plaintiffs at a disadvantage when pursuing production of those files.
Ever-changing data sources, privilege and privacy concerns and court requirements are just some of the parameters that can impact on how discovery is handled and negotiated. It’s important to keep your ESI protocol template evergreen to address these changes. Data and processes evolve, so should your ESI protocol.
Understand Your Data and Technical Capabilities
What types of data do you expect to have in your ESI collection? Do you expect to have collaboration app data from Slack or Teams? Will mobile devices be part of discovery? What about structured data sources, like databases? Does your organization frequently link to files in the cloud within emails instead of physically attaching them?
These are examples of questions you need to know the answers to before agreeing to an ESI protocol with opposing counsel. It’s imperative that you understand your data and your technical capabilities to preserve, collect, review and produce that data. In a 2023 ruling in the case In re StubHub Refund Litigation, the defendant agreed to produce hyperlinked files as “modern attachments” in the ESI protocol (which was entered into as a court order) before understanding the difficulty in doing so.
The court ordered the defendant to either comply with the court ordered ESI protocol or produce a witness for a Rule 30(b)(6) deposition explaining why they couldn’t. Never agree to an ESI protocol without understanding your data and your technical capabilities and challenges discovering that data. If possible, that understanding should be developed even before litigation commences. After all, it’s your data.
Get Started Early
While you don’t want to begin negotiations on an ESI protocol without understanding your data and technical capabilities, you do want to pursue negotiation of the ESI protocol as early as possible in the case. The longer you wait, the more difficult it may be to conduct discovery efficiently and effectively. Getting started early helps flush out areas of dispute more quickly that you can meet and confer about, and address with the court if you’re unable to agree.
Pick Your Battles
While it’s important to negotiate an ESI protocol that’s designed to serve your organization’s needs, some needs are more important than others. Taking a “scorched earth” approach to ESI protocol negotiations and arguing about every detail will ultimately drive up discovery costs and could also incur the court’s wrath due to your unwillingness to compromise…on anything. Identify the parameters within the ESI protocol that are most important to you and the ones that you’re willing to compromise on to keep the negotiations moving forward.
Understand Court Expectations
Not all courts have the same expectations regarding ESI protocols. Some judges actually feel that they can increase disputes in discovery. Others feel that they are an important tool to reduce discovery disputes and their rulings may reflect that.
In LKQ Corp. v. Kia Motors Am., Inc., the Court chastised the parties for not entering into an ESI protocol early and declined to order the parties to enter into an ESI protocol later in the case when discovery was well underway. The Court even had its own model ESI protocol for the parties to consider as a starting point! It’s important to understand the court’s position on ESI protocols and adjust accordingly.
Decide Whether to Formalize the ESI Protocol as a Court Order
ESI protocols reflect agreements between the parties on how discovery will be conducted. They can be formalized as a court order, but that’s not necessarily required. If the ESI protocol is formalized as a court order, failure to comply with the ESI protocol could result in sanctions to your organization under FRCP Rule 37(b), which could have happened to StubHub in their case above since the ESI protocol was formalized as a court order in that case.
ESI protocols are designed to be a “shield” to support your ediscovery processes. Formalizing ESI protocols as a court order has the potential to turn an ESI protocol into a “sword” that can be used against your organization if you fail to comply with the terms of the protocol. Understand your options and decide which option is best for your organization.
Leave Room for Unforeseen Issues
While it’s important to understand your data and your technical capabilities and challenges before entering into an ESI protocol, you can’t always anticipate everything your team will encounter in discovery. So, it’s important to provide an ability to modify the ESI protocol if it becomes impossible for your organization to comply with one or more terms in the protocol.
Fortunately for the defendant in the In re StubHub Refund Litigation referenced above, they did that. In this ruling several months later, the Court granted the defendant’s motion to modify the ESI Order because it contained a clause that it “may be modified . . . by the Court for good cause shown”, which the defendant was able to do. It’s important to include language like that in the ESI protocol to provide room if an unforeseen issue makes compliance with a portion of it impossible – especially if the ESI protocol is formalized as a court order. It’s also important to be able to demonstrate the difficulty of compliance as the defendant did in this case.
ESI Protocol Checklist
ESI protocols can vary from organization to organization and case to case. However, each protocol should address certain considerations and elements. Here is a comprehensive checklist of key elements that should be considered for an ESI Protocol:
1. Scope and Purpose
Define the purpose of the protocol (e.g., to establish guidelines for ESI preservation, collection, processing, and production).
Specify whether the protocol applies to all parties or only specific aspects of discovery.
2. Data Preservation
Identify the types of ESI subject to preservation (e.g., emails, databases, chat messages, mobile data, cloud storage).
Outline each party’s obligations for issuing and maintaining litigation holds.
Address preservation of metadata and potential sources of inaccessible ESI.
3. Data Collection
Specify the custodians and data sources that will be collected.
Address the collection methodology, ensuring defensibility (e.g., forensic imaging vs. targeted collection).
Establish protocols for third-party data or sources not directly controlled by the parties.
4. Search and Filtering Methodologies
Define agreed-upon search terms, date filters, and custodians.
Outline protocols for keyword refinement and hit report exchanges.
Address whether Technology-Assisted Review (TAR) or other AI-driven methodologies will be used.
5. Production Format
Specify the preferred format for document production, such as:
Native files (e.g., Excel, databases)
PDF or TIFF + load files (with extracted text and metadata)
Define required metadata fields (e.g., author, file path, custodian, email subject, recipients, sent/received dates).
Specify requirements for Bates numbering and placeholder images for redacted or withheld documents.
6. Handling Privileged and Confidential Information
Establish privilege logging requirements (e.g., categorical logs vs. document-by-document).
Include a clawback agreement under Federal Rule of Evidence 502(d) to protect against inadvertent disclosure.
Define protocols for handling redacted documents and marking confidential information.
7. Quality Control and Error Resolution
Include provisions for quality control checks, such as random sampling of productions.
Establish a procedure for resolving production errors, missing data, or corrupted files.
Define a meet-and-confer process for handling disputes over production compliance.
8. Dispute Resolution
Outline a process for resolving disagreements over ESI searches, production, or privilege issues.
Specify whether disputes must go through negotiation, mediation, or court intervention.
9. Ongoing Obligations and Updates
Address the need for supplemental productions if additional relevant ESI is discovered.
Allow for modifications or updates to the protocol as needed, with agreement from both parties.
Case Law Rulings Related to ESI Protocols
Case law rulings involving the use of ESI protocols are considerably on the rise. Here are five case law rulings related to the use of ESI protocols (in addition to the cases mentioned above):
Carl Zeiss Meditec, Inc. v. Topcon Med. Sys., Inc., No. 19-cv-04162-SBA(LB) (N.D. Cal. June 30, 2022)
Here, the defendant’s cost shifting request for redoing a production where attachments were originally produced separately from emails was rejected by the Court because it had produced them differently than the requirement under the ESI protocol.
In re Allergan Biocell Textured Breast Implant Prods. Liab. Litig., MDL No. 2921 | Civil Action No. 2:19-md-2921 (BRM)(ESK) (D.N.J. Oct. 25, 2022)
Here, the Special Masters denied the defendants’ proposed protocol for the use of technology-assisted review (“TAR”) of applying TAR after search terms, citing the ESI Protocol which required the parties to confer about TAR approach first.
In re Diisocyanates Antitrust Litig., No. 18-1001 | MDL No. 2862 (W.D. Pa. Jan. 26, 2023)
In this case, the parties agreed upon the Stipulated ESI Protocol which required that they “discuss and attempt to reach an agreement on search methodologies”. When the plaintiffs filed a motion to compel the full production of calendar entries and the production of text messages without doing so, the Court denied their motion.
McCormick & Co. v. Ryder Integrated Logistics, Inc., No. JKB-22-0115 (D. Md. March 8, 2023)
Here, the Court overruled plaintiff’s objections to a magistrate judge’s ruling which determined that document review was required by the ESI Protocol, after McCormick was forced to gather additional ESI to replace that of a “key custodian” whose ESI was deleted when she left the company.
SinglePoint Direct Solar LLC v. Solar Integrated Roofing Corp., No. CV-21-01076-PHX-JAT (D. Ariz. March 21, 2023)
In this case, the parties agreed to ESI protocols on which the Court was not asked to rule. Regarding the defendants’ claims that the plaintiffs’ objections to search terms were untimely, the Court found that “the parties’ protocols are unmanageable because they do not set a specific timeframe for objections”.
ESI Protocol Resources
While this chapter provides several guidelines and best practices regarding ESI protocols, each protocol should be tailored to the needs of the organization. However, there are some available guidelines and templates to consider when drafting your own ESI protocol. Here are three useful resources to check out.
Drafting a Thoughtful ESI Protocol
This guide from eDiscovery Assistant discusses why understanding and planning ESI protocols at the outset of a matter is crucial for avoiding sanctions, reducing costs, and securing key evidence and the importance of customizing ESI protocols to suit each unique case, as well as strategies and considerations to effectively leverage your ESI protocol to manage costs in discovery and help ensure a more effective litigation result.
The Annotated ESI Protocol
A guide from industry expert Craig Ball which provides guidelines and exemplar language found in a typical ESI protocol, with explanation and commentary on each section.
Everlaw ESI Protocol Template and Article
An ESI protocol template from Everlaw which is designed to be a starting point for the technical mechanics suitable for making and receiving productions and for the creation and use of the productions in modern ediscovery platforms. Additionally, this article discusses guidelines and best practices to help you develop a robust ESI protocol.