ESI protocols explained: what they cover, and a template
An ESI protocol is the parties' written agreement on how electronic evidence will be preserved, searched, produced and handled, usually entered as a court order. Settled early it costs nothing; settled after a production has gone out in the wrong form, it costs a re-production.
Updated October 6, 2026
An ESI protocol is the written agreement between the parties setting the rules for preserving, collecting, searching, reviewing and producing electronically stored information. It fixes production format, metadata fields, load files, deduplication scope, privilege logging and clawback terms before anything is produced. Most are drafted as stipulations and submitted for entry as court orders.
The value is entirely in the sequencing. A protocol entered before collection lets the producing party process once, to a known specification. A protocol negotiated after a production has gone out in the wrong form is a re-production, at the producing party’s expense.
Which ESI does a protocol govern?
Electronically stored information is any information created or stored in digital form: email, documents, spreadsheets, chat messages, databases, voicemail, images, and the metadata attached to all of it. The term entered the Federal Rules in the 2006 amendments, which added it alongside “documents” throughout Rule 34 precisely so that discovery obligations would not turn on whether something was paper.
Rule 34(a)(1)(A) describes the scope broadly: “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations, stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” The glossary entry on ESI covers the definition in full.
What is the purpose of an ESI protocol?
To settle the mechanics of electronic discovery once, in advance, so that productions are usable on arrival and disputes about format, metadata or completeness do not consume the case.
Concretely, it does four things. It converts a series of potential motions into a checklist both sides agreed to. It lets the producing party process and produce once rather than twice. It gives the receiving party a production it can load without rebuilding it. And it creates a written record of what was agreed, which is what a court looks at when someone later says a production was deficient.
The cost asymmetry is the argument for doing it early. Agreeing a metadata field list at the conference costs an hour of attorney time. Litigating it after a 40,000-document production has been delivered without those fields costs a motion, an order, and a re-export.
What is the federal court ESI protocol?
There is no single federal ESI protocol. Rule 26(f)(3)(C) requires the parties’ discovery plan to state their views and proposals on “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced”, but the rule does not say what the answer should be. The protocol is whatever the parties file in the specific case.
What does exist is a body of model orders and guidelines published by individual district courts, which parties adapt. Three are cited more than any others:
- The Northern District of California publishes Guidelines for the Discovery of Electronically Stored Information, a Model Stipulated Order Re: Discovery of Electronically Stored Information for Standard Litigation, and an ESI Checklist for use at the Rule 26(f) conference.
- The District of Kansas publishes Guidelines for Cases Involving Electronically Stored Information, among the earliest and still among the most detailed.
- The District of Maryland publishes a Suggested Protocol for Discovery of Electronically Stored Information, a long-form document that reads as a drafting checklist.
Two further rules do most of the substantive work. Rule 34(b)(2)(E) governs form: a party must produce documents “as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request”; absent a specified form, ESI is produced “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms”; and “a party need not produce the same electronically stored information in more than one form.” Federal Rule of Evidence 502(d) supplies the clawback: “a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court, in which event the disclosure is also not a waiver in any other federal or state proceeding.”
Check the assigned judge’s standing orders as well as the district’s. Individual practice standards frequently add requirements the district guidelines do not.
What does a complete ESI protocol cover?
In roughly the order the sections usually appear:
| Section | What it fixes | Why it costs money if omitted |
|---|---|---|
| Scope and date range | Which sources and what period | Re-collection |
| Custodians and sources | Named custodians, systems, cloud accounts | Disputes over completeness |
| Preservation | What is held, what need not be | Spoliation motions |
| Search methodology | Terms, TAR, or both, and what is disclosed | Re-review |
| Form of production | Native, TIFF or hybrid | Re-production |
| Metadata fields | The exhibit listing every field | Re-export |
| Load files | DAT and OPT format, delimiters, encoding | Failed loads |
| Bates and endorsements | Prefix, numbering, confidentiality legends | Renumbering |
| Deduplication | Global or custodial; the ALLCUSTODIANS field | Duplicate review |
| Privilege logging | Document-by-document, categorical or metadata log | The most expensive log there is |
| Clawback | Rule 502(d) non-waiver | Waiver litigation |
| Redactions | Burn-in, logging, re-OCR | Leaked privileged text |
| Exceptions and disputes | Exception reports, meet-and-confer clause | Motions |
The form-of-production row is where the largest single cost sits. A protocol that images everything commits every spreadsheet and presentation to format-conversion charges and destroys content that only exists in the native file: formulas, hidden columns, speaker notes, tracked changes. Most protocols therefore adopt a hybrid: images for email, Word documents and PDFs, natives for spreadsheets, presentations, audio, video and structured data. The format risk planner shows which file types in a collection lose content when imaged, and generates the clause.
Where can I find a template?
Two sources, in ascending order of how much adaptation they need.
A district court’s model order is the safest starting point when you are in that district, because it reflects what that court expects. The N.D. Cal. model stipulated order is the most widely borrowed.
An opposing party’s prior protocol, if you have one from a comparable matter, is often the fastest route to agreement, because counsel who has signed a form before argues with it less.
Whichever you start from: this is a starting point, not legal advice. Verify local rules, the assigned judge’s standing orders and every rule citation against current authority before filing, and adapt the document to the matter in front of you.
Is an ESI protocol a stipulation or an order?
A stipulation is the parties’ agreement. It binds them as a contract between counsel, and a breach is a breach of that agreement.
An order is the same document after the court has signed it. It is enforceable through the court’s contempt and sanctions powers, and non-compliance is a violation of a court order rather than a dispute between parties.
Most protocols are drafted as stipulations and submitted for entry as orders, which is why they are usually captioned “Stipulated Order Regarding the Discovery of Electronically Stored Information.” The distinction matters most for the clawback. A private non-waiver agreement binds only the parties to it; Rule 502(d) non-waiver requires a court order, and only the order carries the protection into other federal and state proceedings. A protocol containing a 502(d) clause that was never entered gives you materially less than counsel usually assumes.
The related question (an ESI protocol versus a general discovery or scheduling order) is one of scope rather than force. A scheduling order sets dates. An ESI protocol sets mechanics. They are frequently entered as separate documents on the same day.
How this works on a flat rate
Several protocol terms are negotiated with one eye on what they cost to comply with: whether to image everything, whether global deduplication is permitted, whether a custom metadata field order is worth asking for, how many re-productions the budget tolerates. On Kavarn, which Konvergence Inc operates on a single flat rate, those questions are still worth getting right for the receiving party’s sake, but the production side of them does not move the bill: processing, hosting, productions and exports are inside the flat instance rate rather than metered per gigabyte or per page. The pricing page publishes the rate in full. See what the platform includes, or book a walkthrough.
Sources
- Fed. R. Civ. P. 26(f)(3)(C), quoted; Fed. R. Civ. P. 26(b)(5)(B); Fed. R. Civ. P. 16(b).
- Fed. R. Civ. P. 34(a)(1)(A) and 34(b)(2)(E), quoted.
- Fed. R. Evid. 502(d), quoted; Fed. R. Evid. 502(b).
- U.S. District Court for the Northern District of California, Guidelines for the Discovery of Electronically Stored Information, Model Stipulated Order Re: Discovery of Electronically Stored Information for Standard Litigation, and ESI Checklist.
- U.S. District Court for the District of Kansas, Guidelines for Cases Involving Electronically Stored Information.
- U.S. District Court for the District of Maryland, Suggested Protocol for Discovery of Electronically Stored Information.
- The Sedona Conference, Principles, Third Edition, Principle 3 (early agreement on ESI); Glossary: eDiscovery & Digital Information Management.
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Common questions
Is an ESI protocol required?
The Federal Rules require the conference, not the document. Rule 26(f) obliges the parties to discuss preservation of ESI and the form of production and to report their positions in a discovery plan; reducing that to a protocol is the practical way to do it. Many state courts have no equivalent rule, which makes a protocol voluntary but no less useful: the disputes it prevents cost the same in either forum.
What happens if the parties cannot agree on a protocol?
The unresolved issues go into the Rule 26(f) discovery plan as competing positions and the court resolves them, often at the scheduling conference. That is a worse outcome than agreement for both sides, because a judge deciding format and metadata questions on a cold record tends to impose something neither party designed. A partial protocol covering what is agreed, with the disputes carved out, is usually better than none.
Can an ESI protocol be changed after it is entered?
Yes, by stipulation and, if it was entered as an order, by the court amending it. Protocols commonly need amendment when a new data source appears: a chat platform, a phone, a database nobody mentioned at the conference. Build in a mechanism: most protocols include a clause requiring the parties to meet and confer in good faith before seeking relief.
Does an ESI protocol replace a protective order?
No. They cover different things and are normally separate documents. The protective order governs confidentiality designations, who may see designated material and what happens at the end of the case. The ESI protocol governs the mechanics of preservation, search and production. They intersect at the confidentiality legend endorsed on produced images, which the protocol specifies and the protective order authorizes.