Drafting ESI Agreements and Protocols

This technical note describes Lexbe’s electronically stored information (ESI) model order/agreement/protocol for litigators to use as a sample or example in their e-Discovery negotiations.

Overview

Formalized eDiscovery agreements or orders/protocols are highly advisable in document intensive cases. Our model agreement/order provides you with a comprehensive checklist of what you might want to consider to stay ahead of the curve and avoid potential pitfalls. This includes standard language for loadfiles for easiest loading into the Lexbe eDiscovery Platform, as well as many other helpful provisions.

A properly planned and negotiated e-Discovery ESI agreement can streamline electronic discovery and avoid unnecessary disputes and case delays and reduce e-discovery costs. Failure to handle these sometimes technical but important issues can lead to frustration, high costs, embarrassment, and ultimately the inability to obtain key evidence in your case.

ESI Agreements can sometimes be negotiated as part of the Rule 26 ‘Meet and Confer’ process in federal court. In such cases, having a model agreement can help focus the Rule 26 discussions. Even outside of the Rule 26 framework, such an agreement can be helpful in any complex commercial case.

At Lexbe we have drafted and are making available for use a model ESI agreement that covers all the important issues you might wish to consider, with suggested agreement or order language. Feel free to adapt to your own use or use as a checklist.

Topics Covered in Model ESI Agreement

• • Preservation, collection and culling

  • Not reasonably accessible ESI

  • Use of search terms of document review

  • Metadata production requirements

  • Duplicates

  • Databases

  • Form of production

  • Native files

  • Parent-child relationships

  • Bates numbering

  • File naming conventions

  • Load files

  • Extracted text/OCRed text

  • Exception files

  • Translation of produced materials

  • Privileged information

  • Privilege log

  • In-camera review of documents subject to a privilege claim

  • Receipt of privileged information

  • Redaction

  • eDiscovery liaison

  • Appendix

ESI Production Appendix

Lexbe also has available a model ESI Production Appendix. The Sample ESI Production Appendix is a subset of provisions included in the Model ESI Order, but only covers production provisions. This can be helpful in cases where a full ESI Order is not needed or desired. The ESI Production Appendix is meant to be attached to a Case Management Order, or other litigation agreements or orders regarding the production of ESI.

Download Model ESI Order

PDF: Lexbe Sample ESI Agreement

Editable DOC format: Lexbe Sample ESI Agreement

Download Model ESI Production Appendix

PDF: Lexbe Sample ESI Production Appendix

Editable DOC format: Lexbe Sample ESI Production Appendix

Additional Assistance

Lexbe’s Professional Services team is available to assist in drafting and reviewing ESI orders, protocols and specific production requirements. For additional assistance, please contact professionalservices@lexbe.com