Federal ESI Protocol Order (Stipulated)

STIPULATED [PROPOSED] ORDER GOVERNING ELECTRONICALLY STORED INFORMATION (ESI) PROTOCOL

UNITED STATES DISTRICT COURT
[DISTRICT NAME] DISTRICT OF [STATE]

[PLAINTIFF(S)],

    Plaintiff(s),

v.                                         Case No. [____________________]

[DEFENDANT(S)],

    Defendant(s).

STIPULATED ORDER GOVERNING DISCOVERY OF ELECTRONICALLY STORED INFORMATION

The parties, having conferred pursuant to Fed. R. Civ. P. 26(f), and having agreed to the following protocol for the preservation, identification, collection, review, and production of electronically stored information ("ESI"), hereby stipulate and agree as follows, subject to approval and entry by the Court:

1. SCOPE AND PURPOSE

1.1 Purpose. This Order governs the preservation, collection, review, and production of ESI in this litigation. The parties have designed this protocol to promote efficiency, reduce disputes, and minimize undue burden and expense consistent with Fed. R. Civ. P. 26(b)(1) and the proportionality considerations of Fed. R. Civ. P. 26(b)(2)(C).

1.2 Cooperation. The parties shall comply with the obligations set forth in this Order and shall promptly notify opposing counsel of any issue that may affect compliance. The parties are guided by The Sedona Principles, Third Edition (2017), as a framework for resolving ESI disputes.

1.3 Modification. This Order may be modified by stipulation of the parties with Court approval, or by Court order upon good cause shown.

2. PRESERVATION

2.1 Litigation Hold. Each party shall maintain a litigation hold sufficient to preserve all potentially relevant ESI. The hold shall cover, at minimum, the date range of [__/__/____] through [__/__/____] (or the present), unless otherwise agreed or ordered.

2.2 Custodians. The initially agreed upon custodians are:

Additional custodians may be identified through discovery. Any party seeking to add custodians shall provide written notice; disputes shall be resolved pursuant to Section 10 below.

2.3 Data Sources. The parties shall preserve ESI from the following sources:

• ☐ Email and calendaring systems (e.g., Microsoft Exchange/Outlook, Google Workspace/Gmail)
• ☐ Network file shares and document management systems
• ☐ Cloud storage (e.g., OneDrive, Google Drive, Box, Dropbox, SharePoint)
• ☐ Mobile devices (smartphones, tablets) — text/SMS messages, messaging applications
• ☐ Collaboration platforms (e.g., Slack, Microsoft Teams, Zoom)
• ☐ Databases and structured data systems
• ☐ Social media accounts (personal and business)
• ☐ Backup systems and archival media
• ☐ Other: [________________________________]

2.4 Suspension of Auto-Deletion. Each party shall suspend routine auto-deletion policies for preserved custodians and data sources to the extent reasonably practicable and technically feasible.

3. COLLECTION AND SEARCH METHODOLOGY

3.1 Search Terms. The parties shall meet and confer regarding search terms. The initial agreed-upon search terms are set forth in Exhibit A (attached). New terms may be proposed by either party; disputes shall be resolved per Section 10.

3.2 Technology-Assisted Review (TAR/Predictive Coding).

• ☐ TAR/predictive coding will be used. If used, the parties shall disclose the protocol, training set approach, and validation methodology before production begins.
• ☐ TAR/predictive coding will not be used.

3.3 De-Duplication. ESI shall be de-duplicated globally (across all custodians) using industry-standard hash values (MD5 or SHA-1). De-duplication methodology shall be disclosed upon request. Email threads may be produced in a "near-duplicate" or "email thread" suppression format to reduce volume, with all unique messages preserved.

3.4 Date Filtering. Documents shall be filtered by date range: [__/__/____] through [__/__/____]. Documents outside this range may be collected and preserved but need not be reviewed or produced absent further agreement or court order.

3.5 Exceptions. If a party determines that a particular source or custodian is not reasonably accessible due to undue burden or cost within the meaning of Fed. R. Civ. P. 26(b)(2)(B), that party shall promptly disclose the source and the basis for its determination, and the parties shall meet and confer.

4. PRODUCTION FORMAT

4.1 Default Format — Images. Unless otherwise specified, ESI shall be produced as:

• ☐ Single-page Group IV TIFF images (300 dpi minimum), with Bates numbers and any applicable confidentiality designations affixed
• ☐ Single-page PDF images
• ☐ Native format (see Section 4.3)

4.2 Metadata. Each production shall include a load file (.DAT or .OPT) containing at minimum the following metadata fields:

4.3 Native Production. The following document types shall be produced in native format:

• Spreadsheets (e.g., Microsoft Excel, Google Sheets) — unless static review is sufficient
• Presentations (e.g., Microsoft PowerPoint) where animations/transitions are material
• Databases
• Audio/video files
• Other: [________________________________]

Native files shall be accompanied by a TIFF placeholder bearing the Bates number and a notation "PRODUCED IN NATIVE FORMAT." Native files shall be named by their Bates number with the original file extension.

4.4 Extracted Text. Searchable extracted text shall be provided as document-level .TXT files for all produced documents. OCR text shall be provided for scanned images and redacted documents.

4.5 Color. If color is necessary to understand the document, documents shall be produced in color TIFF or PDF.

4.6 Bates Numbering. Bates numbers shall use the prefix [____] and shall be formatted as [prefix]-[7-digit number], e.g., [PRFX-0000001].

4.7 Production Media. Productions shall be transmitted via: ☐ Secure file transfer (SFTP/secure link) ☐ Encrypted USB drive ☐ Other: [________________________________]. All productions shall be encrypted. Passwords shall be transmitted separately.

5. PRIVILEGE AND CLAWBACK (FED. R. EVID. 502(d))

5.1 Rule 502(d) Order. Pursuant to Fed. R. Evid. 502(d), the inadvertent or unintentional production of documents, ESI, or information covered by the attorney-client privilege, work-product doctrine, or any other applicable privilege or protection shall not constitute a waiver of that privilege or protection in this proceeding or in any other federal or state proceeding.

5.2 Clawback Procedure. Upon discovery that privileged or protected material has been produced:

• (a) The producing party shall notify the receiving party in writing within [____] business days of discovery;
• (b) The receiving party shall, within [____] business days of notification, return, sequester, or destroy (at the producing party's election) all copies of the disclosed material and shall not use or disclose the information until the claim is resolved;
• (c) The receiving party may present the document to the Court under seal to challenge the claim of privilege; and
• (d) The producing party shall provide a privilege log entry for the clawed-back document within [____] business days of the clawback notice.

5.3 Intentional Disclosure. Intentional production of a document shall not constitute a waiver of privilege as to other documents relating to the same subject matter unless the Court so orders after considering applicable law.

6. PRIVILEGE LOG

6.1 Format. Privilege logs shall be produced in spreadsheet format and shall include, at minimum:

6.2 Timing. Privilege logs shall be produced no later than [____] days after each rolling production.

6.3 Categorical Logs. The parties may agree to produce categorical privilege logs in lieu of document-by-document logs for categories of documents (e.g., post-litigation communications with litigation counsel). Any party may challenge a categorical log entry.

7. REDACTIONS

7.1 Permitted Redactions. Redactions are permitted for:

• ☐ Privileged content (attorney-client communications, work product)
• ☐ Personally Identifiable Information (PII) not relevant to the claims
• ☐ Protected Health Information (PHI) under HIPAA
• ☐ Trade secrets and confidential commercial information (subject to the protective order)
• ☐ Third-party personal information (SSNs, financial account numbers, etc.)

7.2 Redaction Format. Redactions shall be clearly marked with the basis for each redaction on the face of the document (e.g., "REDACTED – PRIVILEGE," "REDACTED – PII").

7.3 Metadata. Metadata for redacted fields in native files shall be stripped or replaced with a notation indicating the basis for redaction.

8. COST ALLOCATION

8.1 General Rule. Each party shall bear its own costs of preservation, collection, review, and production unless otherwise agreed or ordered by the Court.

8.2 Cost-Shifting. If a party demonstrates that a particular ESI source is not reasonably accessible due to undue burden or cost, the Court may order cost-sharing after considering the factors in Fed. R. Civ. P. 26(b)(2)(C) and the proportionality factors in Fed. R. Civ. P. 26(b)(1).

8.3 Vendor Information. Upon request, the parties shall disclose the identity of their discovery vendor(s).

9. CONFIDENTIALITY

This Order shall be read in conjunction with any Protective Order governing confidential information entered in this case. Documents produced pursuant to this ESI Protocol shall be designated pursuant to the applicable Protective Order.

10. DISPUTE RESOLUTION

Before seeking judicial intervention, the parties shall meet and confer in good faith (by telephone or videoconference within [____] business days of the dispute arising) in an attempt to resolve any ESI dispute. If the dispute cannot be resolved, either party may seek relief from the Court after complying with the Court's applicable local rules for discovery disputes.

11. CERTIFICATION

The parties, through undersigned counsel, represent that they have reviewed this protocol with their respective clients and e-discovery consultants (if any), and that the protocol is feasible and proportional under the circumstances of this litigation.

STIPULATED AND AGREED:

For Plaintiff(s):

Dated: [__/__/____]

___________________________________________
[Attorney Name]
[Bar Number]
[Law Firm Name]
[Address]
[City, State, ZIP]
[Phone]
[Email]
Counsel for Plaintiff(s)

For Defendant(s):

Dated: [__/__/____]

___________________________________________
[Attorney Name]
[Bar Number]
[Law Firm Name]
[Address]
[City, State, ZIP]
[Phone]
[Email]
Counsel for Defendant(s)

IT IS SO ORDERED.

Dated: [__/__/____]

___________________________________________
Hon. [Judge Name]
United States District Judge
[District Name] District of [State]

EXHIBIT A — AGREED SEARCH TERMS

SOURCES AND REFERENCES

• Fed. R. Civ. P. 26: https://www.law.cornell.edu/rules/frcp/rule_26
• Fed. R. Evid. 502: https://www.law.cornell.edu/rules/fre/rule_502
• The Sedona Principles, Third Edition (2017): https://thesedonaconference.org/publication/The%20Sedona%20Principles
• Sedona Conference Commentary on Rule 502(d) Orders (2022): https://www.thesedonaconference.org/sites/default/files/publications/1-Rule%20502(d)%20Orders.pdf