An ESI protocol is a negotiated or court-entered order governing how electronically stored information is preserved, collected, searched and produced. It is the single most effective cost control in document-heavy litigation.

What it should cover. Custodians and non-custodial sources. Date ranges. Data types included and excluded — email, chat, mobile messages, collaboration platforms, voicemail, structured databases. Search methodology, whether keywords, technology-assisted review, or both. Deduplication and email threading. Production format and metadata fields. Handling of privilege, including claw-back.

Claw-back and the non-waiver order. An order providing that production does not waive privilege, entered under the applicable evidence rule, protects against inadvertent disclosure and against the argument that a broad production waived the subject matter. Getting one entered early is close to costless.

Modern message sources are the live issue. Ephemeral messaging, chat platforms and personal devices generate data that is easy to lose and hard to collect. Address them expressly; silence is read as an assumption they were covered.

Negotiate early, revisit once. Protocols agreed before anyone knows the data landscape often need one amendment. Build in a meet-and-confer mechanism so that amendment does not require motion practice.