ESI Protocol Checklist for the Rule 26(f) Conference

Rule 26(f)(3)(C) requires the discovery plan to state the parties’ views on any issues about disclosure, discovery or preservation of electronically stored information, including the form or forms in which it should be produced.

That clause is the single highest-leverage sentence in the rule. Form of production is nearly impossible to renegotiate once a party has produced, and a protocol agreed in an afternoon prevents the motion practice that otherwise arrives in month five.

Form of production

Settle this first, because everything else assumes it.

• Native, near-native, or imaged? Spreadsheets and presentations lose meaning when imaged — formulas, hidden columns, speaker notes. Agreeing that spreadsheets and media are produced natively while other documents are imaged is a common and workable compromise.
• If imaged: single-page TIFF or PDF, with what load file format, and what image resolution.
• Text. Extracted text for electronic originals, OCR for scanned paper, delivered as separate text files rather than embedded.
• Bates numbering and branding. Endorsement of confidentiality designations, and how that interacts with native files, which cannot be branded on their face.

Rule 34(b)(2)(E) supplies the default if you do not agree: documents produced as kept in the usual course of business or organised to correspond to the categories, ESI in the form specified in the request or, failing that, in a form in which it is ordinarily maintained or a reasonably usable form — and a party need not produce the same ESI in more than one form. Defaults are a worse outcome than agreement for both sides.

Metadata fields

Agree the field list explicitly. A workable core:

Field	Why it matters
Custodian	Who held it — the backbone of most review
BegDoc / EndDoc / BegAttach / EndAttach	Document boundaries and family relationships
DateSent / DateReceived / DateCreated / DateLastModified	Chronology
From / To / Cc / Bcc	Email participants
Subject / Title / Filename	Identification
FileExtension / FileSize	Processing and completeness checks
MD5 or SHA-1 hash	De-duplication and authentication
Confidentiality	Protective order designation

Agree the time zone for date normalisation. This sounds trivial and produces real disputes about whether a document predates an event.

Scope: custodians and date ranges

• Proposed custodian list, with the basis for each
• Date range, and whether it differs by custodian or category
• Non-custodial sources — shared drives, databases, ticketing systems, chat
• Systems that are not reasonably accessible under Rule 26(b)(2)(B), and the basis for that position
• Mobile devices, ephemeral messaging and collaboration platforms, which need to be raised explicitly or they will not be searched
• De-duplication: global across custodians, or within custodian, and how duplicate custodians are tracked
• Email threading, and whether producing the inclusive message suffices

Search methodology

• Search terms, or a technology-assisted review protocol
• Whether terms are negotiated, and whether hit counts are exchanged
• Validation — sampling of the null set, and what the parties may ask about it
• Whether the producing party will disclose its methodology at all, which is itself often the dispute

Privilege: logging and clawback

Two separate items, both belonging in the plan.

Logging. Agree the format and timing. Consider categorical logging for large, homogeneous categories such as post-complaint communications with outside counsel — it saves enormous effort and courts routinely approve it when the parties propose it together. Agree explicitly whether communications after the complaint date need to be logged at all.

Clawback. Rule 26(f)(3)(D) expressly invites the parties to ask the court to include their agreed procedure in an order — and the order to seek is one under Federal Rule of Evidence 502(d), which can provide that disclosure in the litigation does not waive privilege in that proceeding or any other, federal or state. A 502(d) order is short, uncontroversial and disproportionately valuable; get it entered rather than relying on a private agreement, which does not bind non-parties or other proceedings.

Preservation

Rule 26(f)(2) requires the parties to discuss preservation. Cover the scope of the litigation holds actually issued, the disposition of auto-delete and retention policies, backup systems and whether they are within scope, and departed-employee data. Raise disagreements now; a preservation dispute discovered at deposition is a spoliation motion.

Cost and phasing

• Who bears processing and hosting costs
• Whether production is phased — priority custodians first is often the fastest route to settlement posture
• Rolling production schedule and substantial-completion date
• Whether cost-shifting is proposed for anything

Local requirements

Several districts have their own ESI guidelines, checklists and model orders, and some judges require them to be used. The Northern District of California maintains ESI Guidelines, a Rule 26(f) checklist and a model stipulated ESI order, and its joint case management statement asks directly what preservation steps have been taken — see the N.D. Cal. guide. Check your district and your judge before drafting from a general form.

Working through it

This is a long list, most of it uncontroversial, with three or four items that matter. Worked through on a call it takes two hours and produces a memory of an agreement; worked through in writing it produces the protocol itself.

Proposing each item, getting an acceptance or a redline, and compiling the agreed text is exactly the shape AsyncConfer gives the conferral — and the items that deadlock are visible as deadlocks rather than as things one side thought were settled. See the full Rule 26(f) checklist for where this fits in the conference as a whole.

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Related guides

• Rule 26(f) Conference Checklist: What the Rule Requires
• N.D. Cal. Joint Case Management Statement
• The Rule 37(a)(1) Good-Faith Certification