Need An Exchange Protocol Checklist? Here’s Some Suggestions.

Most people think an ESI exchange protocol is simply a load file that is automatically included with documents that you produce or receive. In actuality, the term means much more than that.

First and foremost, it’s the required result of a required process. FRCP 26(a)(1) requires initial disclosures and FRCP 26(f) dictates a “conference of the parties” (also known as the “meet and confer”) to discuss, among other things, including a requested format for production of documents. Opposing counsel can propose their own format for delivery and that’s where the ESI protocol comes in – it is designed to formalize the way in which the parties eventually agree to exchange their documents.

Second, it’s a way to resolve disputes before they happen, especially disputes regarding proportionality.  And given that there were 889 case law decisions involving proportionality disputes in 2020, which is even more than sanctions disputes, exchange protocols are an important tool.

Dorothea Brande, the respected New York writer and editor, once said of writing projects that “A problem clearly stated is a problem half solved.” Doug Austin of EDIscovery Today couched it in more compelling terms when he stated that the exchange protocol is “ … literally your “blueprint” for discovery.”

The premier question in developing a protocol is “what do you want to do?’ Are you dealing with your documents or a production from opposing counsel? Do you want to review for privilege, a key phrase or term or just general principles?  Decide that before you begin.

And before you DO begin, be sure that what you are doing and/or what your opponent has done meets the requirements of the rules. This is essential because the protocol eventually becomes entered as a court order

For a quick checklist of steps to take, here’s an article I wrote for my good friends at Digital War Room.

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