Establishing an E-Discovery Protocol

I have long advocated the importance of successfully reaching agreement on an electronic discovery protocol early in the litigation process as a means of avoiding disputes down the road and minimizing risks of sanctions. A well crafted, comprehensive protocol can go a long way toward eliminating disputes over form of production, search terms, scope of search and even preservation obligations.

E. Kendrick Smith and Robin A. Schmahl, writing in the Fulton County Record, have provided a good checklist of considerations for protocol negotiations in their article "How to Get an E-Discovery Protocol Rolling" published earlier this month and reproduced at Law.com. Their concluding thought says it well:

Discovery protocols work best when the attorneys do their respective homework and cooperate with each other early in the discovery process. If done thoughtfully and in good faith, entering into such a protocol can drastically reduce costs and streamline discovery. It is a litigator's best tool for managing electronic discovery and avoiding discovery disputes.

To their comments I would add one additional thought: Lawyers must ensure that they fully understand the systems and technology they will be dealing with, both for e-discovery support and at the client's site. In other words, the lawyers must know what they are to be talking about in the protocol negotiations.