The Meet and Confer Conference and ESI Protocols

Few moments in the litigation lifecycle shape the cost, scope, and outcome of electronic discovery as decisively as the early conference between the parties and the protocol they negotiate for handling electronically stored information (ESI). Long before a single document is reviewed, opposing counsel are expected to meet, confer, and reach practical agreements about what data exists, how it will be preserved, how it will be searched, and in what form it will be produced. The conversation is deliberately front-loaded because ESI is voluminous, fragile, and expensive to handle. Decisions deferred until later tend to harden into disputes, and disputes about format or scope are among the most avoidable and most costly in modern litigation.

This meet-and-confer obligation is not a courtesy; in the federal system it is a structured requirement, and many state and administrative forums have adopted parallel expectations. For records and information managers, the conference is the point at which an organization’s everyday recordkeeping practices, retention schedules, and systems inventory are translated into a litigation posture. A defensible records program makes the conference shorter and the protocol easier to honor. A neglected one turns the same meeting into an exercise in damage control.

The Purpose and Timing of the Conference

The meet-and-confer is intended to surface and resolve discovery issues early, while choices are still inexpensive to make. Under the Federal Rules of Civil Procedure, parties confer near the outset of a case to develop a discovery plan, and that plan is expected to address ESI specifically: the subjects on which discovery will be sought, the sources that will be searched, the timing of production, and any issues about preserving or producing electronic information. The conference also feeds the scheduling order the court ultimately enters, giving the parties’ agreements the force of a judicial directive.

Timing matters because preservation duties typically attach before the conference ever occurs—often when litigation is reasonably anticipated rather than when a complaint is filed. By the time counsel sit down, a legal hold should already be in place. The conference is therefore less about deciding whether to preserve and more about confirming what has been preserved, narrowing what must be collected, and avoiding over-collection that inflates cost without advancing the merits.

What an ESI Protocol Covers

An ESI protocol (sometimes styled an ESI agreement or order) is the written instrument that memorializes the parties’ technical understandings. While no two are identical, a thorough protocol generally addresses:

• Scope and custodians. Which people, departments, and systems are likely to hold relevant information, and any agreed limits on date ranges or subject matter.
• Data sources. Email, file shares, collaboration and messaging platforms, databases, mobile devices, and any sources the parties agree are not reasonably accessible.
• Search methodology. Whether search terms, technology-assisted review, or other culling methods will be used, and how the parties will validate and refine them.
• Production format. Whether documents are produced as images with load files, in native format, or some hybrid, and how the parties will handle dynamic or structured data.
• Metadata fields. Which metadata will be preserved and produced, since fields such as author, dates, and file paths are often essential to authenticity and context.
• Privilege handling. How privileged material will be logged and how inadvertent production will be addressed, frequently through a clawback understanding.
• De-duplication and threading. How duplicate documents and email families are treated to reduce review burden without losing context.

The unifying principle is proportionality: the effort demanded should be reasonable in light of the needs of the case, the amount in controversy, and the relative cost and access each party has to the information.

Form of Production and Metadata

Disputes over the form of production are common precisely because they are easy to overlook in the abstract and painful to fix after the fact. Native files preserve embedded metadata and functionality—spreadsheet formulas, for example—but can be harder to redact and Bates-stamp. Imaged formats are easier to annotate and control but strip away underlying data unless accompanied by load files. Agreeing on format, and on the specific metadata fields to be carried forward, prevents a producing party from delivering material in a form that frustrates meaningful review and prevents a requesting party from demanding more than the case warrants.

Preservation, Legal Holds, and Defensibility

The conference exposes the strength of a party’s preservation efforts. Counsel should arrive able to describe the legal hold, the systems it covers, and the steps taken to suspend ordinary deletion and retention cycles. This is where day-to-day records management and litigation readiness converge. Organizations that maintain clear retention schedules, a current systems inventory, and disciplined disposition under an authorized schedule can preserve narrowly and confidently. The same governance that supports routine recordkeeping—knowing what records exist, where they live, and how long they are kept—directly supports a defensible preservation narrative. Federal recordkeeping guidance from the National Archives reflects this same lifecycle logic, and although it speaks to government records management rather than civil litigation, the underlying discipline of identifying, scheduling, and controlling records is precisely what makes preservation defensible when discovery arrives.

A note on standards: organizations sometimes assume a single certified system specification guarantees discovery readiness. It does not. The National Archives revoked its endorsement of the older DoD 5015.2 records management application standard in favor of the Universal Electronic Records Management Requirements and the broader Federal Electronic Records Modernization Initiative, signaling a shift toward functional, outcome-based requirements rather than reliance on a single certified product specification. The practical lesson for ESI is similar—defensibility flows from sound processes and documented decisions, not from any one badge of compliance.

Cooperation, Documentation, and Common Pitfalls

Courts increasingly expect cooperation on the mechanics of discovery, even as parties remain adversaries on the merits—an expectation reflected in widely cited guidance from The Sedona Conference. Cooperation does not mean conceding substance; it means resolving logistics efficiently so the dispute can be decided on its facts.

Several pitfalls recur. Parties agree to search terms without testing them, then discover the terms return unusable volumes or miss key documents. They defer format decisions and litigate them after collection, when changing course is expensive. They overlook newer data sources—ephemeral messaging, collaboration tools, and structured systems—until a gap surfaces. And they fail to document their agreements, leaving the protocol open to reinterpretation. The remedy in each case is the same: prepare thoroughly, negotiate concretely, write the agreement down, and revisit it as the case develops. A well-run conference and a clear ESI protocol do not eliminate discovery disputes, but they confine them to genuine disagreements rather than avoidable misunderstandings.