Teaching ESI Protocols

[William Hamilton]

The recent case of Hall v. Warren, 2025 WL 139294 (W.D. N.Y.), involved a dispute over an ESI protocol and a challenge to the protocol entered by the Magistrate Judge. There are excellent materials available on negotiating protocols, including Kelly Twigger's comprehensive series on protocol planning and negotiation (https://www.ediscoveryassistant.com/esi-protocols-part-i-planning-for-ediscovery-when-how-and-why/) and Craig Ball's equally impressive annotated guide to ESI protocols (https://craigball.net/2023/01/09/the-annotated-esi-protocol/).

At this year's University of Florida Law E-Discovery Conference, we hosted a mock ESI protocol negotiation session featuring Scott Milner of Morgan Lewis (https://www.morganlewis.com/bios/smilner) representing the defense and Jennifer Hoekstra of the Alsook firm (https://www.awkolaw.com/our-attorneys/jennifer-hoekstra/) representing the plaintiff. The session is available at https://www.youtube.com/watch?v=xoY57BtN1iE.

The pedagogical question, however, is how do we effectively teach ESI protocols to our students? Should we focus on timing, content, or negotiation skills? I have traditionally taught ESI protocols early in the course—within the first few weeks—as part of the initial Rule 26(f) dialogue. The challenge with this approach is that students know so little about e-discovery at that stage that the concepts remain largely foreign to them.

I have also invited guest practitioners to discuss ESI protocol negotiation strategies, provided numerous real-world examples, and conducted mock ESI protocol negotiations with modest success. However, I am seeking more effective pedagogical approaches. Has anyone developed a successful teaching methodology for ESI protocols that they would be willing to share?

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[Maria Salacuse]

Hi Bill,

First, thank you for accepting me as part of this ListServ.  Although I have been a guest lecturer with Mike Berman at University of Baltimore School of Law, I am not a professor.  But I conduct regular ediscovery training with EEOC attorneys. As you know, I also am interested in getting more involved in teaching ediscovery outside of EEOC.  This will be a great place to exchange ideas.

As for your question, it seems to me students need to first have an eDiscovery foundation otherwise it can be quite intimidating to negotiate something one does not understand. The mocks at UFLAW have been great but again it assumes the students understand what is being negotiated.   I also have done webinars on ESI Protocols as well as brought in outside folks to demonstrate an effective negotiation, but that allows folks to stay within their comfort zone and not gain the practical skills necessary.  I am currently considering having the more seasoned attorneys with ediscovery experience engage in a mock negotiation of an ESI Protocol. I do not think the mock would go well with those without ediscovery experience unless they were paired with someone who was more knowledgeable. It seems doing such a mock exercise at the end of your class would be the best time. 

Maria Salacuse

Maria Salacuse 

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[Xavier Rodriguez]

Hello everyone,

I know my position is heretical, but I don’t see the value in an ESI protocol. The parties negotiate at length on these, generally without first understanding their data and what is or is not feasible to produce. Secondly, our current federal rules in my opinion don’t allow judges to procedurally intervene in any pre-production dispute. Only till a defective production is shown can a judge hear any motion to compel. Judges ruling pre-production on competing clauses in an ESI protocol doesn’t seem to have any rule based authority. I think students should know about the existence of ESI protocols, but am unsure at this stage of their learning there is value in a mock session. 

Just my two cents. 

Bill, thanks for bringing us all together to share thoughts and strategies. 

Xavier Rodriguez

On Jun 6, 2025, at 7:53 AM, Maria Salacuse <chalupa...@gmail.com> wrote:



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[Ralph Artigliere]

Hello all-

I totally agree with Xavier. It is regrettable that ESI protocols generate unnecessary and often costly haggling over issues that may not even arise in discovery. One positive is getting the lawyers to talk to each other and address ESI issues early, which can be extremely important. They usually work best for knowledgable, cooperative counsel. Counsel who are insecure and wary of each other can get wrapped around the axel. In my opinion, a better way to teach negotiation is with the 26f mandatory conference. That still has the issues with ESI and discovery sophistication of the students, but it may be less complicated if specific issues like form and breadth of discovery are the object of the exercise.

Ralph Artigliere

Ralph Artigliere

Florida Circuit Judge (ret.)

Clemson, SC

(706)-851-4121

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Ralph Artigliere

Florida Circuit Judge (ret.)

Clemson, SC

(706)-851-4121

[Mark Lyon]

ESI protocols are extremely helpful in my practice for providing guardrails when we estimate the cost and burden of discovery, which is a constant client concern.  The form of production, scope of preservation, and even details like the requirements for priv logging can have dramatic impact on collection volumes, staffing, and technology selection.  They can (and do) devolve into issues that may not be present in the instant matter, but often how opposing counsel addresses these issues can also give insight into how they'll handle more substantive topics. For simpler matters, sometimes you need only reach common understanding on the form of production and metadata fields - portions of the DOJ antitrust and SEC standards are often helpful for these purposes.

When addressing an ESI Protocol, also consider confidentiality needs and 502(d) orders. 

- Mark Lyon

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Mark H. Lyon

(202) 545-6541

https://marklyon.org

[Craig Ball]

Judge Artiglere: If counsel are engaging in "unnecessary and often costly haggling over issues that may not even arise in discovery," then they've gone far afield of what a sensible ESI protocol is suited to accomplish.

Judge Rodriguez: May I set down my pitchfork and torch long enough to note that the FRCP does indeed contemplate that judges address certain pre-production disputes.  Case in point, forms of production.  The Rules were intended to require parties to bring disputes over form to the Court before production, hence the requirements of specification of forms or forms sought in the request and the declaration of form of production by the producing party in order to facilitate resolution before production.  That this dance has been observed in the breach doesn't obviate the intent of the drafters in seeking early and efficient intervention by the Court.

Just my nickel, the penny having been banished.

Whether the "negotiation training" is geared to a 26(f) about the subjects suited to a protocol or a we use the shorthand of calling it a protocol negotiation, ensuring that the students understand the technical and practical issues is the goal served.  Thanks for the shoutout, Bill.

Craig Ball

Texas Attorney and Forensic Technologist

Certified Computer Forensic Examiner

Adjunct Professor, University of Texas School of Law (Austin)

3251 Laurel Street

New Orleans, LA 70115

TEL: 713-320-6066

E-MAIL: cr...@ball.net

WEB: www.craigball.com

BLOG: www.ballinyourcourt.com

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Take nothing on its looks; take everything on evidence.  

There's no better rule.  -Charles Dickens

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[Doug Austin]

I love that our first conversation on this new network started with a request for teaching methodologies on ESI protocols and it's turned into a debate over whether they're even a good thing! I think I'm going to like this forum!  😁

I agree with Craig's comment about "ensuring that the students understand the technical and practical issues is the goal served". Regardless of what you call it, doing so early in the case flushes out the disputes that are likely to occur anyway, IMO. I've covered a lot more contentious cases that didn't have an ESI protocol than those that did. It's like the old Midas muffler commercial: you can pay me now or pay me later. 😉

Looking forward to hearing more, including resources to address Bill's original question!

[Joseph Bartolo]

Glad to be part of this group.  Interesting discussion...let me be the first to chime in on what gen AI had to say about the string of comments up to Doug Austin's comment:  The debate around ESI protocols is fascinating because it really hinges on balancing efficiency, cooperation, and practicality.

On one hand, protocols can provide structure—helping parties align early on metadata, formats, and preservation, reducing later disputes. As Mark Lyon pointed out, having clear guardrails can ease the cost burden of discovery and help gauge the feasibility of production. But Xavier Rodriguez and Ralph Artigliere make valid points: some negotiations occur before parties even understand their data, and the back-and-forth can become an unnecessary, costly exercise. If litigants aren’t well-versed in ESI, the process can feel artificial rather than truly useful.

For teaching purposes, the timing is critical. If students don’t have a solid foundation in eDiscovery, mock negotiations might feel more like going through the motions than building practical skills. A hybrid approach—introducing foundational concepts early, then diving into negotiations once they have a working grasp—might be more effective.

So, while I see the value in ESI protocols, their success depends on the knowledge level of those using them and the willingness of counsel to cooperate. What’s your stance? Have you encountered situations where a protocol helped or hindered the discovery process?  (Co-Pilot)  I concur

Thanks for adding me to the group, looking forward to more interesting and informative discussion.

Best regards,

Joe Bartolo, J.D. - The Project Consultant, LLC

 

On Thu, Jun 5, 2025 at 4:04 PM William Hamilton <professor.wil...@gmail.com> wrote:

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Joseph Bartolo, J.D.

Partner 

The Project Consultant

joseph....@theprojectconsultant.com

908-463-8322

[Eric Robinson]

First, as others in this thread have stated, thank you for inviting me to the party and for consistently shining light on real issues. 

As someone who has had to draft defend and criticize ESI protocols, I do see and appreciate all of the perspectives presented so far. That said, my personal opinion is that these protocols serve a valuable purpose in detailing and memorializing parties’ expectations and agreements regarding core eDiscovery issues. Not only do protocols provide a baseline for obligations, but in the event of production deficiencies, give the parties and jurists a foundation from which to start the analysis. 

With respect to protocols versus the Meet & Confer/Discovery Conference debate. I do not find them to be mutually exclusive. The rules appear to require parties to be able to speak to the scope of discovery. There is no requirement (nor should there be) to agree to a protocol before the scope of discovery has been, at least initially, negotiated. The protocol can then be crafted to align with the agreement on f the parties as it relates to the scope of discovery. 

Protocols can can, and should, be crafted to allow the parties reconvene to address potential revisions to the protocol based on newly discovered information. 

From a teaching perspective, I believe there is tremendous value in teaching students to understand the complexities and value of the tools and mechanisms available to them to make the discovery process more efficient and reduce potential downstream disputes over forms and content of discovery. With an understanding of the legal, technical and practical implications of decisions made during the discovery process, lawyers and legal technologists are much better positioned to deal reasonably and rationally with an often complex process. 

Just my opinion. 

Eric Robinson

KLDiscovery Ontrack LLC

Eric.r...@kldiscovery.com

Sent from my iPhone to avoid delay

(Please excuse any typos)

On Jun 6, 2025, at 13:00, Joseph Bartolo <joseph....@theprojectconsultant.com> wrote:



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[Xavier Rodriguez]

Just to be clear. I agree that lawyers have a duty to meet and confer on discovery issues per Rule 26(f).  Great if there is agreement on form and other issues.

My issue is memorializing these agreements into an order signed by a judicial officer. Many “agreed” orders are submitted that later turn into a fight where one side (or both) want relief from the Order.  This is usually because there was no testing of the protocol before submission of the order for judicial signature.   Some judges will refuse to modify the Order.  That may be in some instances compounding another mistake on the initial mistake.   

The part where I do not believe there is a rule that supports this practice is both sides submitting competing versions of an ESI Order that want entered.  Some may say well Rule 1 or Rule 16, but do those rules necessarily abrogate the scheme set up in Rule 34?  More concerning, the parties are asking the most unknowledgeable person in the room to opine on details of review, production, etc.

Now I have heard from some grunts in the trenches that they want an ESI Order so they know how to do the review and production. One and done and that’s it.  But I have seen instances where a party has argued that we conformed to the ESI Order and that’s all we had to do and even if we found some relevant (even hot) data we didn’t have to produce it because that was not in the ESI Order.  I don’t see how a party avoids its obligations in those instances.

Sent from my iPad

On Jun 6, 2025, at 5:14 PM, Eric Robinson <emrobi...@gmail.com> wrote:



First, as others in this thread have stated, thank you for inviting me to the party and for consistently shining light on real issues. 

As someone who has had to draft defend and criticize ESI protocols, I do see and appreciate all of the perspectives presented so far. That said, my personal opinion is that these protocols serve a valuable purpose in detailing and memorializing parties’ expectations and agreements regarding core eDiscovery issues. Not only do protocols provide a baseline for obligations, but in the event of production deficiencies, give the parties and jurists a foundation from which to start the analysis. 

With respect to protocols versus the Meet & Confer/Discovery Conference debate. I do not find them to be mutually exclusive. The rules appear to require parties to be able to speak to the scope of discovery. There is no requirement (nor should there be) to agree to a protocol before the scope of discovery has been, at least initially, negotiated. The protocol can then be crafted to align with the agreement on f the parties as it relates to the scope of discovery. 

Protocols can can, and should, be crafted to allow the parties reconvene to address potential revisions to the protocol based on newly discovered information. 

From a teaching perspective, I believe there is tremendous value in teaching students to understand the complexities and value of the tools and mechanisms available to them to make the discovery process more efficient and reduce potential downstream disputes over forms and content of discovery. With an understanding of the legal, technical and practical implications of decisions made during the discovery process, lawyers and legal technologists are much better positioned to deal reasonably and rationally with an often complex process. 

Just my opinion. 

Eric Robinson

KLDiscovery Ontrack LLC

Eric.r...@kldiscovery.com

Sent from my iPhone to avoid delay

(Please excuse any typos)

On Jun 6, 2025, at 13:00, Joseph Bartolo <joseph....@theprojectconsultant.com> wrote:



Glad to be part of this group.  Interesting discussion...let me be the first to chime in on what gen AI had to say about the string of comments up to Doug Austin's comment:  The debate around ESI protocols is fascinating because it really hinges on balancing efficiency, cooperation, and practicality.

On one hand, protocols can provide structure—helping parties align early on metadata, formats, and preservation, reducing later disputes. As Mark Lyon pointed out, having clear guardrails can ease the cost burden of discovery and help gauge the feasibility of production. But Xavier Rodriguez and Ralph Artigliere make valid points: some negotiations occur before parties even understand their data, and the back-and-forth can become an unnecessary, costly exercise. If litigants aren’t well-versed in ESI, the process can feel artificial rather than truly useful.

For teaching purposes, the timing is critical. If students don’t have a solid foundation in eDiscovery, mock negotiations might feel more like going through the motions than building practical skills. A hybrid approach—introducing foundational concepts early, then diving into negotiations once they have a working grasp—might be more effective.

So, while I see the value in ESI protocols, their success depends on the knowledge level of those using them and the willingness of counsel to cooperate. What’s your stance? Have you encountered situations where a protocol helped or hindered the discovery process?  (Co-Pilot)  I concur

Thanks for adding me to the group, looking forward to more interesting and informative discussion.

Best regards,

Joe Bartolo, J.D. - The Project Consultant, LLC

<LDI Architect.jpg>

 

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[Eric Robinson]

For clarity, I do not believe that the FRCP are dispositive on ESI protocols nor are they a perfect mechanism. If the objective is (a) memorialize the agreement/understanding of the parties, (b) mitigate or minimize downstream eDiscovery disputes, and (c) assist in the efficient application of the discovery process, then, in my humble opinion, ESI protocols are fit for that purpose.

That said, these protocols should provide for the inevitable “surprises” or new developments through the meet & confer mechanism. 

From a teaching perspective, students should understand both the advantages and challenges of ESI protocols. Having a base understanding of eDiscovery is essential in both drafting and negotiating them. It is also important for lawyers to understand and appreciate that pulling in internal or external subject matter experts can be a tremendous value add to this process. I have seen too many eDiscovery agreements and/or ESI protocols where a party had no or little understanding of what they were agreeing to from a practical delivery and obligation standpoint. 

Eric Robinson

KLDiscovery Ontrack 

eric.r...@kldiscovery.com

Sent from my iPhone to avoid delay

(Please excuse any typos)

On Jun 6, 2025, at 18:36, Xavier Rodriguez <xavier_r...@att.net> wrote:

Just to be clear. I agree that lawyers have a duty to meet and confer on discovery issues per Rule 26(f).  Great if there is agreement on form and other issues.

[Maria Salacuse]

Teaching when an ESI Protocol should be considered in a case is also worthy of discussion. Not all cases need protocols. 

Based on this thread it is clear why the Sedona Conference could never come to consensus on ESI Protocols! I think students should be aware of the pros and cons or protocols as they are out there and some judges encourage them. Even some courts have model protocols. Of course I know not to present an ESI Protocol to Judge Rodriguez!  Which brings me to another teaching topic - know your judge!

Maria Salacuse 

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[Eric Robinson]

Maria, good points and not to take this discussion in an unintended direction, but the topic of ESI protocols spurred some lively exchanges at the WG1 mid-year meeting. 

It was interesting to listen to the different perspectives of judges, counsel and practitioners on both sides of the debate. 

I would whole-heartedly support Sedona taking up this conversation!

Eric Robinson

Sent from my iPhone to avoid delay

(Please excuse any typos)

On Jun 7, 2025, at 17:06, Maria Salacuse <chalupa...@gmail.com> wrote:



[William Hamilton]

Returning to the law school or university pedagogical problem, our discussion suggests to me a "spiraling" approach. A full, detailed ESI protocol cannot be built in a semester-long e-discovery course, but we can have a gradual construction process. We can begin an ESI Protocol discussion early in the context of the Rule 26(f) conference and discuss and incorporate some of the simpler, obvious themes, e.g., preservation, that should be included as suggested by Craig and Kelly's work. This will give the student a sense that professionalism requires cooperation and that the agreements are good for all parties, and that we need to head off as many downstream disputes as possible. Then, as the course topics continue, we can introduce new topics, e.g., production formats and search, and have the students discuss these themes and how to continue to build confidence and trust into the ESI Protocol process. In sum, we can start with some of the obvious non-controversial things to include in the ESI Protocol and then add complexity to the ESI Protocol as more and more topics are explored in the course.

[Craig Ball]

Or you could invert the process in a realistic way. viz, Start the semester with: "opposing counsel has supplied the following proposed protocol and a senior partner seeks your advice on what provisions to accept, reject or modify."  

Then, you can build units around the various provisions, much as some of us build around the EDRM as a touchstone for units.

Craig Ball

Texas Attorney and Forensic Technologist

Certified Computer Forensic Examiner

Adjunct Professor, University of Texas School of Law (Austin)

3251 Laurel Street

New Orleans, LA 70115

TEL: 713-320-6066

E-MAIL: cr...@ball.net

WEB: www.craigball.com

BLOG: www.ballinyourcourt.com

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Take nothing on its looks; take everything on evidence.  

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[Eric Robinson]

I would propose that starting with a basic understanding of the EDRM and an explanation of how ESI protocols fit into the EDRM would provide a solid foundation for appreciating and understanding the eDiscovery process. 

Eric Robinson

Sent from my iPhone to avoid delay

(Please excuse any typos)

On Jun 13, 2025, at 14:40, Craig Ball <cr...@ball.net> wrote:



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[William Hamilton]

Craig,

That's an Interesting idea:  building the course around the lived experience of a junior associate. You would have to be careful not to overwhelm the student, but it just might work if the instructor carefully explains that we'll be discussing these ESI protocol topics as the course evolves. The approach could also work with other aspects of e-discovery practice, e.g. "We just received this request for production," or "We need to do preliminary disclosures."

[William Hamilton]

Eric,

The EDRM is a critical tool. I use it very early in the course to provide an overview of where we are going. The downside is that the model (inadvertently) suggests a linear approach and was built-- or at least viewed -- back in the 2000s as a model for responding to requests for production. Today, the RFP is a key component of e-discovery, but my sense is that, as George Sochas has discussed ( https://www.revealdata.com/blog/using-ai-to-prepare-complaints-part-2-the-ai), e-discovery is how to understand and tell the best story for your client, and data plays a heavy role (e.g., taking depositions) at virtually every litigation stage. Teaching students how to do this is our challenge.

[Eric Robinson]

Bill, I agree whole-heartedly that the linear representation is deceiving and does not reflect the iterative and interconnected nature of the discovery process. 

I often take the model and add “arrows” to indicate the potential for iterative aspects. I always stress that the linear EDRM is a simplistic representation of the process. 

I have no doubt that an informed instructor could leverage the model while explaining its potential shortcomings. 

Eric Robinson

Sent from my iPhone to avoid delay

(Please excuse any typos)

On Jun 16, 2025, at 14:53, William Hamilton <professor.wil...@gmail.com> wrote:



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[George Socha]

The EDRM never was meant to be a linear model. We used the arrows to indicate that at any stage in your process, you might find it useful to return to an earlier stage. For example, having started to analyze data you preserved, collected, and processed, you might realize that because of gaps in that data you need to go back to identifying additional information you want to work with.

Unfortunately, the first thing people using the diagram often do is eliminate elements. They remove all the arrows, line all the boxes in a row, and assume that the “right” way to handle eDiscovery is to identify data, and then preserve some of that, and then collect some of that, and then to process some of that, and so on - never looking back, never returning to an earlier stage, never iterating within a stage, and never re-ordering the boxes to better fit the needs of a situation.

If, as a teacher, you can get that nuance across, I think you will have accomplished quite a bit.

George Socha

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[Shannon Bales]

I use the EDRM to teach my classes at UCLA and Santa Ana College as an Adjunct. I also use it in my "day job" at Munger Tolles to teach everyone from paralegals to attorneys ediscovery basics. I do see much confusion around EDRM being "linear" and as George mentions it is not. As an EDRM 2.0 trustee we are looking at how to better educate users on the particulars of the model, and we need to find better ways to educate everyone on how to teach using the model. 

Shannon 

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