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I L T A W H I T E P A P E R | L I T I G A T I O N A N D P R A C T I C E S U P P O R T 5 D E L V I N G I N T O E D I S C O V E R Y : T H E B E N E F I T S O F A N E S I P R O T O C O L Kelly Twigger Recognized by Corporate eDiscovery in 2018 as one of the voices driving the conversation in ediscovery, Kelly Twigger is a practicing attorney, software developer, blogger, author, and speaker on issues in electronic discovery and legal technology. As Principal at ESI Attorneys, Kelly manages a boutique ediscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations and municipalities on all areas of electronic information including ediscovery, privacy, cybersecurity and information governance. Kelly is passionate about teaching lawyers how to identify and leverage electronically stored information for the best outcomes. In 2015, she designed and built eDiscovery Assistant ( www.ediscoveryassistant.com ), an online resource for case law, rules, checklists, forms and learning in electronic discovery. Kelly is a regular blogger on Above the Law and for ESI Attorneys and eDiscovery Assistant and one of the co-authors of Electronic Discovery and Records and Information Management, published by West and updated annually. You can reach Kelly at kelly@ediscoveryassistant.com , join her Facebook community group at Let's Talk eDiscovery, or connect with her on Twitter @kellytwigger. You risk agreeing to standards that you and your client cannot later meet. Case law is prevalent that ESI protocols are binding on the parties absent written agreement or good cause, and good cause is expensive. Many courts and judges at the federal level now have proposed orders requiring the parties to discuss eDiscovery and provide the court with a protocol or overview of the issues at the Rule 16 conference. (They are all included in eDiscovery Assistant in the Rules section.) Leverage those. Even in cases where you never file the protocol with the court, or opposing counsel refuses to sign it, the exercise will reap huge rewards. After 20+ years of litigating complex engineering design cases and 15 of those focused on discovery, I can tell you that the exercise of thinking through everything that will be needed for your case in discovery is invaluable. You will go back to that protocol again and again, and you will continue to fine tune it for every case you have. ILTA Portions of this article first appeared on Above the Law. want to produce or 3) you know the resistance to the cost will be high. Sending third-party subpoenas with the protocol and with a cover letter stating that we would like to meet and confer on the scope of the response with counsel immediately following receipt gets counsel thinking about it and moving vs. having it sit on their desks for weeks before starting a response. Your protocol is your discovery blueprint for the case and you will go back to it time and time again. Drafting a protocol means you have to sit down and identify data sources, ensure the legal hold is up to date and correct, determine third parties that may be needed (or who need their relationships with your client to be protected), figure out how you'll handle data (form and manner of production, plus any approach to searching and filtering data), talk about mobile devices, and address any unique issues in the case. On average, we revisit the protocols in place in a matter 10-15 times over the course of a litigation to firm up a position, require compliance, or consider our options for a new issue based on what we agreed to. Using an ESI protocol as a process for charting discovery is immeasurably valuable when you put the work into making a protocol that is appropriate for your case. On the other side of the coin, pulling a form down and adding the parties' names is dangerous. 5

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