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Maximizing Litigation Results: Step Three – Discovery Negotiations

Maximizing Litigation Results - Step 3

This article is the third in our series, “Maximizing Litigation Results: The Key Stages of E-Discovery Revealed.” Our handy timeline infographic, “Litigation and E-Discovery Timeline,” helps attorneys understand their responsibilities during each step of the litigation/e-discovery process. This week we explore the third step – Discovery Negotiations.


In this step, the legal team takes a proactive role in guiding the terms of negotiation.


Maximizing Litigation Results - Discovery Negotiations
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Under Rule 26(f) of the Federal Rules of Civil Procedure, parties in a legal case must meet, discuss, and make a discovery plan before discovery begins. Informally this meeting is known as the “Meet & Confer”—you might be surprised how often this meeting is skipped, with one of the parties just accepting whatever ESI protocol the other side forwards to them.

We strongly recommend that lawyers take a proactive role in discovery negotiations. Effective negotiation in the Meet & Confer meeting can greatly streamline the E-Discovery process, reduce costs, and improve the chances of a favorable outcome for the client.

In preparation for the Meet & Confer, attorneys must come armed with a comprehensive understanding of the client’s potentially responsive ESI and the effort required to obtain that data. (Hopefully, this information was mapped out in Step 2.) Often times there are technical constraints that can greatly affect the cost of obtaining data from certain systems.

Furthermore, lawyers should be prepared to discuss and negotiate an ESI Protocol. An ESI Protocol document typically outlines how the parties will handle E-Discovery to ensure fairness, efficiency, and cost-effectiveness. This may include topics like the format for ESI production, methods for identifying and preserving ESI, measures to protect privileged information, and procedures for handling inadvertent disclosure of privileged information. Lawyers must understand the implications of these factors and the impact they may have on the subsequent stages of the litigation.

Key Steps:

  • Understand the Client’s ESI
  • Draft of ESI Protocol document
  • Draft discovery requests that
    are reasonable & proportional
  • Successful Meet & Confer

Useful Documents

  • ESI Protocol Templates
  • Clawback Agreements
  • Standard Production Guidelines

As always, feel free to reach out to Data Narro for all of your digital forensics, electronic evidence, and e-Discovery questions. We would be happy to discuss your needs, help you build an effective e-Discovery process for your law firm, or present a no-cost CLE on the topic.