ESI discovery protocol

When to use it

Use when the parties are ready to state how electronically stored information will be preserved and produced. Attach it to the Rule 26(f) report or submit it for an order under Rule 16(b)(3)(B)(iii). It does not replace a protective order.

Used for these tasks

• Review the discovery set and draft a production issues list
• First-pass document review for relevance in discovery
• Summarise discovery for privilege review with technology-assisted review
• Investigate AI tools for document collation as ordered by the court

Each task page says how far AI may help with the task and what the lawyer must review.

How AI may be used

AI may draft the protocol from the systems list and the form of production the lawyer has chosen. The lawyer decides custodians, sources that are not reasonably accessible, and the form.

Method: how the Green, Yellow and Red levels are decided. This is guidance for planning, not legal advice.

Authorities

• Fed. R. Civ. P. 26(f)(3)(C) and (D) (discovery plan must state ESI form and privilege issues) and 26(b)(2)(B) (sources not reasonably accessible)
• Fed. R. Civ. P. 34(b) (form of production; objection must state the form the party will use)
• Fed. R. Civ. P. 37(e) and the 2015 advisory committee note (reasonable steps; restore or replace before other measures)
• Fed. R. Civ. P. 16(b)(3)(B)(iii) and (iv) (scheduling order may cover ESI preservation and privilege agreements)
• Fed. R. Evid. 502(d) and (e)
• Northern District of California ESI guidelines page (guidelines updated 1 December 2015; checklist and model order voluntary; standing-order quote)

More in Commercial Litigation & Dispute Resolution

• Federal Court Form 122: notice of appeal
• Originating application (Federal Court Form 15): completion guide and accompanying-document rule
• Overarching obligations certification (Magistrates' Court of Victoria Form 4A)
• Notice of originating motion (Supreme Court of Western Australia Form 64): completion guide
• Writ of summons (Supreme Court of Western Australia Form 1): completion guide
• Letter of demand with genuine-steps and limitation notes
• NSW SC Gen 23 affidavit and expert AI statements
• AO 133 bill of costs
• AO 440 summons in a civil action (US district court): issue, serve and prove service
• Litigation hold notice (federal civil)
• Federal Court GPN-AI evidence disclosure
• Federal Court Form 121: notice of appeal from the Federal Circuit and Family Court
• Defence (Federal Court Form 33): pleading rules, 28-day time limit and completion guide
• Proper basis certification (Magistrates' Court of Victoria Form 4B)
• Writ of summons (District Court of Western Australia template): completion guide
• Originating summons (Supreme Court of Western Australia Forms 74 and 75): completion guide
• Statement of claim: NSW UCPR Form 3A and Federal Court Form 17 (completion guide)
• AO 136 certificate of good standing
• AO 398 notice of a lawsuit and request to waive service of a summons
• Rule 26(f) discovery-plan report
• Federal Court Form 117: application for leave to appeal
• Affidavit (Federal Court Form 59): form rules, annexures and GPN-AI limits on AI in evidence
• Claim and statement of claim (South Australia Uniform Civil Rules Form 1 and Form 1S): completion guide
• Notice of defence (Magistrates' Court of Victoria Form 8A)
• Application for judicial review (Supreme Court of Western Australia Form 67): completion guide
• Interlocutory application pack: orders sought, short minutes and outline of submissions (NSW notice of motion and Federal Court Form 35)
• AO 399 waiver of the service of summons
• Discovery meet-and-confer letter
• Victorian Supreme Court and County Court AI verification
• Deed of settlement and release (commercial dispute, with consent orders)
• Federal Court Form 16: applicant's genuine steps statement
• Subpoenas (Federal Court Forms 43A, 43B and 43C): issuing, service, conduct money and production
• Originating application (Queensland UCPR Form 5)
• Originating application (South Australia Uniform Civil Rules Form 2): completion guide
• Writ (Supreme Court of Tasmania Form 2): completion guide
• Queensland responsible person on written submissions
• AO 85 notice, consent and reference of a civil action to a magistrate judge
• Stipulated protective order (federal civil)
• Originating claim (ACT Court Procedures Rules Form 2.1): completion guide
• Federal Court Form 11: respondent's genuine steps statement
• Application in an existing proceeding (Queensland UCPR Form 9)
• Originating application to be served (Supreme Court of Tasmania Form 3): completion guide
• Gen AI verification checklist and disclosure wording for court documents (Federal Court, NSW, Victoria, Queensland)
• WA Supreme Court generative AI evidence caution
• Client notice and consent: e-discovery, technology-assisted review and AI document review
• Originating application (ACT Court Procedures Rules Form 2.7): completion guide
• Federal Court Form 31: notice of cross-claim
• Writ (Supreme Court of the Northern Territory Form 5A): completion guide
• Request for consent order of registrar (Queensland UCPR Form 59A)
• SA courts Gen AI affidavit and disclosure position
• Pre-suit commercial demand letter
• Federal Court Form 38: list of documents
• Originating motion (Supreme Court of the Northern Territory Forms 5B, 5C, 5D and 5E): completion guide
• Tasmania Supreme Court Gen AI verify and explain
• Generative-AI filing certification worksheet
• ACT and NT indexes before assuming an AI direction
• Federal Court Form 48: notice of discontinuance
• Deposition outline (not testimony)

All precedents for Commercial Litigation & Dispute Resolution · Tasks and AI use in this area