A well-drafted ESI protocol defines production formats, metadata requirements, search terms, and privilege review procedures, reducing disputes and helping discovery move forward efficiently.
In the November 20, 2025 edition of The Legal Intelligencer, Kelly Lavelle writes, “Understanding and Applying Local Rules When Drafting ESI Protocols.“
ESI protocols govern how parties preserve, collect, review, and produce electronic evidence in federal litigation. What once was an obscure procedural topic now lies at the center of nearly every civil case involving documents, emails, databases and other forms of electronic data. ESI protocols provide structure and predictability in an area that can otherwise be costly and difficult to manage. A well-drafted ESI protocol defines production formats, metadata requirements, search terms, and privilege review procedures, reducing disputes and helping discovery move forward efficiently.
The Role of Local Rules in Electronic Discovery
With ESI protocols now a regular part of litigation, local rules and court practices play a more significant role in guiding the process. While the Federal Rules of Civil Procedure provide the foundation for electronic discovery, many district courts have developed their own local rules and forms to guide parties in drafting ESI protocols. Some districts have detailed local rules governing electronic discovery, while others, including the Eastern District of Pennsylvania, have not enacted a formal local rule governing ESI, but rely instead on individual judges’ policies and preferences that serve the same purpose. These guidelines show that courts expect parties to manage ESI in an organized way and to address potential issues in advance rather than waiting for them to arise. Following local practice helps lawyers know what the court expects, makes negotiations smoother, and saves time by avoiding mistakes the court has already ruled out.
Recent case law demonstrates how these local practices guide judicial decisions on ESI. In Hall v. Warren, 2025 WL 1392294 (W.D.N.Y. May 14, 2025), the parties failed to reach an agreement on an ESI protocol governing the production of electronically stored information. When negotiations fell apart, plaintiffs moved to compel production of metadata from internal reports and investigative files, arguing that such information was necessary to verify whether documents had been altered and to confirm their authenticity and completeness. Unable to obtain agreement from the parties, the court issued its own ESI protocol order that included selected provisions from each side’s proposal.
The defendants filed multiple objections to the court’s order, arguing that the order violated the district court’s local rules and imposed undue cost and technical burden. They claimed the order mandated universal metadata production, required technical tasks they could not perform, demanded compatibility with opposing counsel’s document review platform, and ordered native production without proper justification.
The court rejected these arguments, clarifying that the ESI order did not require many of the things defendants claimed it required and that the order’s actual requirements were consistent with the local rules and, in many instances, mirrored the local rules specific provisions. The order also provided flexibility for the parties to meet and confer on alternate formats or cost-sharing if a production became disproportionately burdensome.
The critical lesson from Hall is that the defendants misunderstood both the ESI order and the local rules they said it violated. The defendants clearly had read the district’s local rules because they cited them throughout their objections. Their problem was not ignorance of the local rules but misunderstanding what those rules actually required. The defendants thought the ESI order required things it did not require. They believed it violated local rules when it actually followed them. They argued that certain procedures were mandatory when the order actually provided flexibility. Because they misunderstood the local rules from the beginning, they could not negotiate effectively. As such, the defendants ended up with a court-imposed protocol that likely was less favorable than what they could have achieved through informed negotiation.
While Hall shows how local rules guide substantive resolution of ESI disputes, the case Husidic v. FR8 Solutions, No. 3:24-cv-963-WGY-SJH (M.D. Fla. Sept. 10, 2025), demonstrates the importance of complying with local procedural requirements even when parties agree. In Husidic, the parties submitted a joint motion requesting that the court enter the parties’ stipulated ESI protocol as an order. The magistrate judge denied the motion identifying three defects. First, the motion cited no legal authority for the proposition that courts should routinely enter agreed ESI protocols as orders. Second, the parties failed to include the memorandum of law required by the U.S. District Court for the Middle District of Florida’s local rules governing motion practice. Third, the request lacked any showing that court adoption of the protocol was necessary or appropriate.
The magistrate judge also identified a substantive issue with the parties’ proposed stipulation, which included ambiguous provisions referencing privilege and work-product protections that might implicate Federal Rule of Evidence 502, yet neither the stipulation nor the motion addressed Rule 502(d). The court emphasized that if parties seek a non-waiver order, they must make the request expressly and provide factual support demonstrating why such an order is necessary.
In declining to endorse the parties’ ESI protocol, the court implied that judicial resources should not be spent approving private agreements that can be managed through cooperation and adherence to the local rules. Further, compliance with local procedural requirements is essential, even when parties agree on the substance of an ESI protocol. Counsel must understand not only the local rules governing electronic discovery but also the local rules governing motion practice and the standards for obtaining court orders.
Practical Guidance for Counsel
For lawyers, these cases show that the most effective ESI protocol is one based on the local rules of the district court or specific judges’ policies and procedures. Counsel should familiarize themselves not only with the federal rules but also with the district court’s ESI checklists, policies, procedures, and discovery guidelines, many of which provide practical direction that supplements the federal rules. Before the Rule 26(f) conference, counsel should review the district’s local rules on electronic discovery and consider how those rules, and the judge’s preferences are likely to influence court resolution of any disputes. By following local rules from the beginning, parties can reduce the likelihood of motion practice and avoid judicially imposed resolutions that may be less favorable than a negotiated agreement.
Kelly A. Lavelle is an associate at Kang Haggerty. She focuses on e-discovery and information management, from preservation and collection to review and production of large volumes of electronically stored information. Contact her at klavelle@kanghaggerty.com.
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