How to Create an Effective ESI Protocol for Your Case

What Is an ESI Protocol?

An ESI protocol outlines how both sides handle electronically stored information during the discovery process in litigation. It sets clear rules for collecting, preserving, and producing documents so that everyone works from the same expectations.

You can think of it as a practical guide for managing electronic data in a case. It defines what types of electronic documents are included and how to format them for sharing, which helps prevent confusion and disagreements as the litigation process moves forward.

Here are a few examples of data sources typically covered in an ESI discovery protocol:

• Emails and attachments
• Instant messages
• Social media posts
• Word documents and spreadsheets
• Cloud files from Google Drive or OneDrive
• Databases or structured records
• Electronic text files

In its most ideal form, an ESI protocol helps you stay organized, avoid unnecessary disputes, and manage electronic data efficiently throughout discovery.

Why an ESI Protocol Is Important

A good ESI protocol plays a crucial role in keeping legal discovery organized, fair, and defensible. Without one, disagreements about file formats or missing data can slow everything down and increase costs.

A well-drafted protocol also keeps the process compliant with local rules and federal rules that govern discovery. It provides a clear structure for how parties exchange information, making it easier to stay on schedule and maintain transparency.

Here’s how a good ESI protocol helps during legal discovery:

• Protects parties: Reduces risk by preventing accidental disclosure of confidential or privileged information.
• Clarifies scope: Defines what data sources and custodians are included in discovery.
• Sets production standards: Outlines acceptable file formats, metadata, and delivery methods.
• Supports cooperation: Encourages collaboration with opposing counsel to avoid unnecessary disputes.
• Promotes consistency: Keeps everyone following the same process from preservation to production.
• Improves defensibility: Creates a documented process for ensuring compliance with court requirements.

Key Components of an ESI Protocol

While every case differs, most protocols share a few essential elements that help both sides stay organized and compliant:

1. Data Preservation and Scope

The first step in creating a good ESI protocol is deciding what information needs to be preserved and who the key custodians are.

This part identifies all the systems, devices, and communication channels that might hold relevant data. It also defines file types, date ranges, and storage locations covered by the agreement.

For example, an ESI order could include Slack conversations or project folders that contain evidence. Setting clear guidelines early prevents arguments about missing or deleted data later in the process.

2. Search and Collection Procedures

Next comes finding and collecting the right information. An effective protocol outlines how both sides will locate relevant data, often through agreed-upon search terms, filters, or technology-assisted review.

Some teams even test sample searches together to check accuracy before proceeding. Defining these procedures governing collection helps everyone stay consistent and builds a defensible record if questions arise during the eDiscovery process.

3. Production Format and Data Delivery

This section explains how each party will produce documents and share them. Common options include native files, PDF, or TIFF formats with load files and metadata fields.

A good protocol might also include email threading or deduplication to reduce duplicates. For instance:

• Native format for spreadsheets or databases
• TIFF or PDF with searchable text for emails
• Metadata fields such as author, creation date, and file path

Agreeing on a production format upfront keeps the exchange smooth and avoids confusion once large volumes of data start moving.

4. Privilege and Confidentiality Protections

Since legal discovery often includes sensitive or attorney-client communications, the ESI protocol should explain how to protect them. This includes setting up privilege logs, outlining redaction standards, and defining how to handle accidental disclosures.

Courts may also require compliance with specific civil procedure rules for managing privileged materials. Addressing these details early helps protect parties and maintain confidentiality throughout the process.

5. Review and Quality Control

Before documents are produced, it’s important to review and confirm everything is accurate and complete. This part of the protocol describes how teams will check files, validate metadata fields, and confirm that all responsive materials are included.

It also helps maintain defensibility if the production is ever questioned in court. Keep in mind that a strong review process not only improves accuracy but also helps both sides feel confident that the discovery exchange is fair and thorough.

How to Create an Effective ESI Protocol

Creating an ESI protocol works best when both sides plan early and stay in sync. Here are a few steps you can follow to build one that actually works in practice.

Start Discussions Early

It’s best to begin talking about the ESI protocol as soon as discovery planning starts. Early collaboration gives both sides time to identify what ESI encompasses, where it’s stored, and how much data is involved.

These discussions also help set expectations for data formats, review methods, and production timelines.

Plus, bringing IT staff or eDiscovery software vendors into the conversation early can make a big difference. They can flag potential technical challenges before they become disputes and help shape a more practical, defensible process.

Define Scope and Responsibilities Clearly

Every ESI protocol should outline what information will be included, who manages it, and how both sides will communicate throughout the process.

Legal teams should agree on what systems and custodians are covered, including emails, chat messages, and other documents tied to the case. Setting these details early helps the producing party and requesting party stay aligned and reduces confusion if discovery issues arise later.

Here’s what to define from the start:

• Data sources: Identify where information is stored, such as email servers, shared drives, or cloud tools.
• Custodians: List key individuals responsible for relevant data.
• Preservation steps: Clarify how each side will protect and retain electronic files.
• Communication plan: Decide how updates, questions, and disputes will be handled.
• Responsibility breakdown: Assign tasks for collection, production, and document review.

A clear scope gives both sides a roadmap to follow, which, in turn, keeps the process transparent and defensible.

Establish Data Formats and Production Standards

Agreeing on consistent data formats keeps things organized and makes document review a lot easier. Most legal teams use native files for spreadsheets or databases since they’re easier to work with, while PDFs or TIFFs are better for emails and reports.

Additionally, it helps to stick to the same metadata and load file standards so both sides can search and filter information without running into compatibility issues.

For example, your ESI protocol might say that emails should include metadata like sender, recipient, date, and subject, while Excel files are shared in native format to keep formulas intact.

You can also agree on steps for de-duplication and email threading to avoid reviewing the same messages twice. Setting these details early keeps the exchange smooth and prevents confusion once documents start going back and forth.

Include Privilege, Redaction, and Quality Controls

An effective ESI protocol should always protect privileged information and other sensitive materials. It’s important to outline exactly how legal teams will handle redactions, maintain privilege logs, and respond to accidental disclosures.

Including a quality review process before production also helps catch mistakes early and keeps the discovery process defensible.

Here’s what to add:

• Privilege handling: Identify how attorney-client communications and other protected data will be marked or withheld.
• Redaction process: Specify how to label and explain redactions in the produced documents.
• Privilege logs: Keep a clear record of withheld materials, listing document type, date, and reason for withholding.
• Quality checks: Review metadata, confirm document completeness, and flag inconsistencies before production.
• Error response plan: Agree on how to correct accidental disclosures quickly and fairly.

These steps give both sides confidence that sensitive information is handled properly and that production remains accurate throughout electronic discovery.

Review and Update as Needed

Even a well-written ESI protocol may need adjustments as the case develops. New custodians, changing timelines, or additional data sources can shift the scope of discovery. Luckily, regular check-ins between parties can help address these updates without conflict.

Moreover, reviewing the protocol as discovery progresses shows good faith under court supervision and keeps both sides aligned. A flexible, well-communicated ESI protocol keeps the process manageable from start to finish.

Reimagine Discovery Response Workflows with Briefpoint

A well-written ESI protocol sets the foundation for smooth discovery, but actually producing and organizing those responses can still take weeks of manual effort.

Briefpoint makes that process faster, easier, and more reliable.

Its new feature, Autodoc, automates the most time-consuming parts of discovery. Simply upload your RFPs, complaints, and case files, and it identifies responsive documents, applies Bates numbering, and generates fully cited Word responses that are ready to serve.

What once took 30 to 40 hours can now take just minutes.

Here’s what makes it stand out:

• 3-10 seconds per request: Get responses faster than ever.
• Word-formatted output: Fully captioned, objection-ready documents.
• Bates-numbered production: A complete, court-compliant package.
• Trust and verify: Review, edit, and confirm before service.
• Privilege controls: Tag and exclude sensitive materials with confidence.

If your firm spends hours building discovery responses manually, Autodoc helps you reclaim that time while keeping every step accurate and controlled.

Book a demo with Briefpoint today!