The standard, legacy ESI protocol language is no longer defensible. It was written for a world of email-centric, static, self-contained data, and that world is gone. Modern discovery runs on cloud-native collaboration platforms where content is dynamic and versioned, where conversations span tools, and where hyperlinks have replaced attachments. A defensible ESI protocol has to address those realities expressly, up front — because silence in a protocol is not neutral. It usually favors the producing party.
Why standard ESI protocol language no longer works
An ESI protocol is the negotiated roadmap for a case — preservation, collection, processing, review, and production — usually set around the Rule 26(f) meet-and-confer and entered as a court order. It allocates cost, burden, and risk among the parties. The problem is that the boilerplate most parties reach for carries a set of buried assumptions: that email is the record, that documents are static, that an attachment is self-contained. Each of those assumptions collides head-on with cloud collaboration. Carrying them forward unexamined does not produce a neutral default; it produces a protocol that quietly resolves every ambiguity in favor of whoever is producing.
Collaboration platforms redefine where the evidence lives
On a modern platform, a document is edited by many people at once, continuously and versioned. The familiar single-custodian model breaks down the moment a workspace is shared — who is the custodian of a document forty people can edit? Comments and conversations now live inside documents, files are stored separately from the messages that reference them, and permissions and access history can be more probative than authorship. A protocol for this environment must distinguish custodial data from system-based data and say plainly how each will be identified, preserved, and produced.
Hyperlinks are the new attachments
Hyperlinks are the new attachments — but courts will not automatically treat a link as one. The cautionary tale is In re StubHub Refund Litigation, 2023 WL 3092972 (N.D. Cal. 2023), where the parties agreed to produce hyperlinked documents as attachments, the producing party could not comply, and the court compelled production while warning against making commitments you cannot keep. So pick a rule and write it down. The realistic options are: (a) link-only — produce the URL, the link text, and the surrounding message context; (b) treat the linked file as an attachment when it is within the producing party's custody or control; or (c) snapshot or version the document as it existed when shared. Whichever you choose, define the exceptions — third-party links, broken links, and permission barriers — before they become disputes.
“Just produce metadata” isn’t enough
A demand to “produce metadata” settles almost nothing. The protocol has to specify which fields, drawn from which system of record, in what format, and for what purpose. The relevant categories include system metadata, application metadata, user-generated metadata, and audit or activity-log metadata — and they differ by source. The clean solution is to attach a metadata schedule organized by data type: one row for email, one for chat, one for cloud files, one for meeting artifacts. A schedule converts a vague promise into something the parties and the court can actually enforce.
Preserve the conversation, not just the text
Context is evidence. Producing the words of a chat message without its surroundings strips out the very thing that makes it intelligible. A workable protocol should require, for conversational data, the message content plus its timestamp and sender; the channel or space identifier; the thread and reply structure; the participant roster that maps handles to real names; edits and reactions where reasonably available; and references to any links or attachments. Reconstructing who said what, to whom, in what order is not a courtesy — it is the difference between a record and a pile of fragments.
Don’t promise what you can’t deliver
Courts enforce the agreement you signed. In In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, 341 F.R.D. 474 (S.D.N.Y. 2022), Keurig was sanctioned under Federal Rule of Civil Procedure 37(b)(2)(A) for failing to comply with the preservation provision it had agreed to in the ESI protocol. The lesson runs in both directions: do not accept obligations you cannot operationalize, and do not assume the other side can either. A protocol is not aspirational drafting. It is a commitment the court will hold you to.
Build it right — tech competence and the neutral’s role
None of this works without a baseline of technical competence. ABA Model Rule 1.1, comment 8, ties competent representation to understanding the benefits and risks of relevant technology — and an ESI protocol is where that duty becomes concrete. Protocols are not one size fits all. Tailor a template to the platforms and data actually in the case rather than copying language that fit a different matter. And engage an eDiscovery neutral or specialist early. A neutral who understands the systems can help the parties build a protocol whose recommendations carry weight without appearing to favor either side — turning a likely fight into a shared roadmap before discovery even begins.
This article is provided for general informational purposes only and does not constitute legal advice. Engagement of Daniel Garrie as a neutral is administered exclusively through JAMS.