---
title: "ESI discovery protocol"
url: "https://ailawframework.com/precedents/commercial-litigation-and-dispute-resolution/us-esi-protocol"
type: "precedent"
site: "AI Law Framework"
id: "a5-us-esi-protocol"
area_id: "A5"
kind: "agreement"
ai_level: "yellow"
version: 1
task_ids: ["A5-T1-R4", "A5-B6-5", "A5-B8-3", "A5-B6-3"]
law_stated_as_at: "2026-10-22"
---

# ESI discovery protocol

> Agreement on preservation, search, and the form of production of electronically stored information in a federal civil case, for use with the Rule 26(f) report or as its own stipulation.

Canonical page: https://ailawframework.com/precedents/commercial-litigation-and-dispute-resolution/us-esi-protocol  
Law stated as at: 2026-10-22

Site index for agents: https://ailawframework.com/llms.txt

## Key facts

- Kind: Agreement. A contract between two or more parties.
- Practice area: [Commercial Litigation & Dispute Resolution](https://ailawframework.com/precedents/commercial-litigation-and-dispute-resolution.md)
- Jurisdictions: United States
- AI level: Yellow. You and the tool draft together, with you directing. You check every statement you rely on.
- Law stated as at: 2026-10-22
- Status: Maintained. Checked on 2026-10-22 against the 6 authorities it cites, for United States.

## 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](https://ailawframework.com/practice/commercial-litigation-and-dispute-resolution/review-the-discovery-set-and-draft-a-production-issues-list.md)
- [First-pass document review for relevance in discovery](https://ailawframework.com/practice/commercial-litigation-and-dispute-resolution/first-pass-document-review-for-relevance-in-discovery.md)
- [Summarise discovery for privilege review with technology-assisted review](https://ailawframework.com/practice/commercial-litigation-and-dispute-resolution/summarise-discovery-for-privilege-review-with-technology-assisted-review.md)
- [Investigate AI tools for document collation as ordered by the court](https://ailawframework.com/practice/commercial-litigation-and-dispute-resolution/investigate-ai-tools-for-document-collation-as-ordered-by-the-court.md)

## 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.

**AI may:**

- Lay out sections 1 to 7 from the lawyer's systems list and the agreed production format
- Mark a section the systems list does not answer, including mobile data, chat tools and backup media
- Compare the protocol with the Rule 26(f) report so the two do not state different forms of production

**AI must not:**

- Must not choose the custodians, the date range, or a search method
- Must not describe a source as not reasonably accessible unless the lawyer has said so
- Must not agree a clawback that is only a side letter and present it as a Rule 502(d) order

**The lawyer checks:**

- The form of production is one the client can actually generate
- Sources parked under Rule 26(b)(2)(B) are identified, not silently skipped
- Privilege-log timing and the 502(d) request match the protective order, if there is one

## 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)](https://www.law.cornell.edu/rules/frcp/rule_26)
- [Fed. R. Civ. P. 34(b) (form of production; objection must state the form the party will use)](https://www.law.cornell.edu/rules/frcp/rule_34)
- [Fed. R. Civ. P. 37(e) and the 2015 advisory committee note (reasonable steps; restore or replace before other measures)](https://www.law.cornell.edu/rules/frcp/rule_37)
- [Fed. R. Civ. P. 16(b)(3)(B)(iii) and (iv) (scheduling order may cover ESI preservation and privilege agreements)](https://www.law.cornell.edu/rules/frcp/rule_16)
- [Fed. R. Evid. 502(d) and (e)](https://www.law.cornell.edu/rules/fre/rule_502)
- [Northern District of California ESI guidelines page (guidelines updated 1 December 2015; checklist and model order voluntary; standing-order quote)](https://cand.uscourts.gov/rules-forms-fees/northern-district-guidelines/e-discovery-esi-guidelines-model-stipulated-orders)

## Full text and drafting notes

The full text and the drafting notes are not part of this public page. Signed-in firm accounts can read them at https://ailawframework.com/precedents/commercial-litigation-and-dispute-resolution/us-esi-protocol and through the signed-in MCP connector https://ailawframework.com/mcp/firm.

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*