“ESI Protocol” v. “Discovery Plan”

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

“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.  

A “discovery plan” includes all aspects of an ESI Protocol; however, an ESI Protocol may not suffice as a “discovery plan.”

Some (like me) favor ESI Protocols and suggest that they are almost-always necessary or appropriate.  Others wish to banish them, viewing them as costly, delaying devices that lead to incessant negotiations with little accomplished.

Some (like me) suggest that they should be incorporated into a court order.  Others view that as the first step down the road to sanctions.

Some say that, once signed, they are carved in stone.  Others (like me) view them as interlocutory orders or agreements that are subject to revision for cause or good cause.^[1]

Some say that they should be bare bones and address only a limited list of topics.  Others suggest a comprehensive list that incorporates every potential bump in the electronic road that is described in any judicial opinion.  Most stake out a middle ground and suggest tailoring the protocol.

Many (like me) agree with Kelly Twigger that: “An ESI protocol is your roadmap to handling ESI issues in any litigation. Like any trip you take, the more planning you do, the less speed bumps you hit….”  Kelly Twigger, ESI Protocols Part I: Planning for eDiscovery—When, How and Why | eDiscovery Assistant.

Excellent resources have been published by Craig Ball, The Annotated ESI Protocol | Ball in your Court (craigball.net), and Kelly Twigger, 2023 ESI Protocol Practical Guide-Download | eDiscovery Assistant and ESI Protocols Part X: Issues in Production from Collaboration Platforms | eDiscovery Assistant.  See also J. Greer,  ESI Discovery Protocol – What To Include (digitalwarroom.com); D. Austin, Proposed Language for Hyperlinked Files in ESI Protocols (ediscoverytoday.com); Model eDiscovery Protocol (uscourts.gov)

I agree that a tailored, written agreement – – an “ESI Protocol” – – is almost always a good idea and these are really good frameworks.  However, depending on the content, if there has been a Rule 26(f) conference, more may be needed.

 WHILE “ESI PROTOCOLS” ARE NOT MENTIONED IN THE RULES, A “DISCOVERY PLAN” IS DEFINED & MANDATED

In “Through the Looking Glass,” Lewis Carroll wrote: “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”

I think that part of the confusion in defining an ESI Protocol stems from the fact that “ESI Protocols” are not mentioned in the Federal Rules of Civil Procedure.  

In fact, I asked ESI-guru Tom O’Connor of Gulf Coast Legal Technology Center if he knew where the term “ESI Protocol” came from.  Tom quoted 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].

Thanks to Tom, and that is a great find.  However, those notes are not binding,^[2] and the Rule – – Fed.R.Civ.P. 26(f) – – does not call for an ESI Protocol.  

Rule 26(f)(2) states in part: “In conferring, the parties must… develop a proposed discovery plan.” [emphasis added].

After a Rule 26(f) conference of the parties, the Rule mandates submitting a “written report outlining the plan.”  Subsection (f)(3) lists the mandatory contents of that “discovery plan” and the six subsections go beyond – perhaps far beyond – an ESI “Protocol.”^[3]  

The Committee Note to the 1993 Amendment to Rule 16(b) states: “The report from the attorneys concerning their meeting and proposed discovery plan, as required by revised Rule 26(f), should be submitted to the court before the scheduling order is entered.” [emphasis added].

The Rule 26(f) “report” triggers a scheduling order under Rule 16(b)(1)(a).  There is no mention of a “protocol” in either Rule.^[4]  

In short: “Rule 26(f) directs the parties to develop a discovery plan during the conference and submit it to the court before the Rule 16(b) scheduling order is due.”  Wright and Miller, 8A Fed. Prac. & Proc. Civ. § 2051.1 (3d ed.)(emphasis added).

THERE IS AMPLE AUTHORITY SUPPORTING THE USE OF “ESI PROTOCOLS”

There are some indicators that ESI issues should be contained in the discovery plan.  The 2006 GAP Report states: “When a case involves discovery of electronically stored information, the issues to be addressed during the Rule 26(f) conference depend on the nature and extent of the contemplated discovery and of the parties’ information systems. It may be important for the parties to discuss those systems, and accordingly important for counsel to become familiar with those systems before the conference. With that information, the parties can develop a discovery plan that takes into account the capabilities of their computer systems.” [emphasis added].  The GAP Report to the 2005 Amendment states: “Rule 26(f) is also amended to direct the parties to discuss any issues regarding preservation of discoverable information during their conference as they develop a discovery plan.”  [emphasis added].

Please don’t get me wrong.  I am not suggesting that “ESI Protocols” are unauthorized.  Clearly, there is more than ample authority supporting the use of ESI Protocols, and the horse is long out of the barn.

For example, in a December 7, 2023, E-Discovery Day webinar titled “ESI Protocols: What to Include and What Not to Include,” The Hon. Allison Goddard, Kelly Twigger, Esq., and Maria Salacuse, Esq., pointed to Rules 1, 16, 26(f), and 29, and their accompanying notes, as sources authorizing an ESI Protocol.  They are correct.

And, a substantial body of decisional law approves of the use of these protocols.  A Westlaw search for “ESI Protocol” in the “All Federal” database returns 598 cases.  The oldest reference is from 2007.^[5]  The search also returns 234 secondary sources. One of the earliest is also from 2007, stating:  “Do you dread litigation knowing that before discovery begins you must sit down with opposing counsel and attempt to agree on the ESI protocol under FRCP 26(f)?”^[6]  In the “All States” database, the same search returned 14 cases, dating back a decade.^[7]

Additionally, there are other names for similar agreements.  Some people call them “ESI Agreements,” “ESI Stipulations,” or “Stipulated Protocols.”  Judge Goddard’s Rule 26(f) Conference Checklist uses the term “ESI Order.”  A search for that term in Westlaw’s “All Federal” database returns 232 cases.

And, there are more specialized agreements that may differ in scope and content from an “ESI Protocol,” such as a “Preservation Protocol,”  “Production Protocol,” “Document Exchange Protocol,” “TAR Protocol,” “Search Protocol,” or, “Discovery Protocol.”  The term “forensic protocol” was used in MMR Constructors, Inc. v. JB Grp. of LA, LLC, 2022 WL 5310816, at *1 (M.D. La. Oct. 6, 2022), and Indus. Packaging Supplies, Inc. v. Davidson, 2019 WL 850903, at *2 (D.S.C. Feb. 22, 2019).

Clearly, there is no impediment to negotiating an ESI Protocol and submitting it for court approval.

AN ESI PROTOCOL MAY NOT BE ENOUGH

However, because the term “ESI Protocol” is not rules-based, it is, as Lewis Carroll wrote, “what I choose it to mean — neither more nor less….”  

That is a good thing.  Parties can tailor a protocol to meet the needs of their case.  One size can’t fit all cases.  Fed.R.Civ.P. 29(b) and the common law provide welcome, necessary, and appropriate  flexibility for an “ESI Protocol.”  For example, Rule 29(b) states that the parties may stipulate that “any other procedures governing or limiting discovery be modified….”  

While the ESI Protocol is flexible, Rule 26(f)(3) is not.  It states that, in a “discovery plan,” certain topics “must” be reported to the court.  Some of them may not be included in an ESI Protocol.  The mandatory topics are:

(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).

Federal Rules of Civil Procedure (FRCP) Rule 26(f)(3).

One solid approach is to negotiate an ESI Protocol as part of a discovery plan.  Another may be to address the discovery plan later, but timely under Fed.R.Civ.P. 26(f)(2).  An alternative could be to negotiate a “discovery plan” in lieu of an ESI Protocol. 

In all events, however, the mandatory provisions of Rule 26(f)(2) cannot be ignored.  Under Rule 26(f)(2), the parties must submit “to the court within 14 days after the conference a written report outlining the [discovery] plan.”

Thanks to Tom O’Connor for his review of a prior draft and suggestions that improved it. Of course, I alone am responsible for any errors in this blog.

Resources

^[1]  A later blog will address whether an ESI Protocol can be subsequently modified.

^[2] Bioconvergence LLC v. Attariwala,  2023 WL 4494020, at *2 (S.D. Ind. June 29, 2023).

^[3] Additionally, Rule 26(f)(4) refers to “the written report outlining the discovery plan,” albeit in the context of an expedited schedule.  Local Rule 104.b of the U.S. District Court for the District of Maryland refers to “a report” under Rule 26(f).

^[4] To the same effect, the 1983 Committee Note states: “The amendment envisioned a two-step process: first, the parties would attempt to frame a mutually agreeable plan; second, the court would hold a ‘discovery conference’ and then enter an order establishing a schedule and limitations for the conduct of discovery….  Before entering such orders, the court should consider the views of the parties, preferably by means of a conference, but at the least through written submissions. Moreover, it is desirable that the parties’ proposals regarding discovery be developed through a process where they meet in person, informally explore the nature and basis of the issues, and discuss how discovery can be conducted most efficiently and economically….  As noted above, former subdivision (f) envisioned the development of proposed discovery plans as an optional procedure to be used in relatively few cases. The revised rule directs that in all cases not exempted by local rule or special order the litigants must …plan for discovery. Following this meeting, the parties submit to the court their proposals for a discovery plan and can begin formal discovery. Their report will assist the court in seeing that the timing and scope of disclosures under revised Rule 26(a) and the limitations on the extent of discovery under these rules and local rules are tailored to the circumstances of the particular case….  The report is to be submitted to the court within 10 days after the meeting and should not be difficult to prepare.” [emphasis added].

^[5] John B. v. Goetz,  2007 WL 4014015, at *2 (M.D. Tenn. Nov. 15, 2007), mandamus granted, order vacated in part, 531 F.3d 448 (6th Cir. 2008).

^[6] Michael D. Fielding & Jack Seward, “You Need to Know This: Bankruptcy and Attorney-Client Privilege in the Electronic Age,” Am. Bankr. Inst. J., December/January 2007, at 1.

^[7] In re NYSE Euronext S’holders/ICE Litig., 39 Misc. 3d 619, 622, 965 N.Y.S.2d 278, 280 (Sup. Ct. 2013).