WorkfloweDiscovery & Litigation Support

ESI Protocol

ESI protocol review that sets each provision of the other side's draft beside your playbook and the court's model order, prices it in review dollars and tests it against what the client's systems can produce.

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The problem

The costliest clauses in a proposed ESI protocol look like boilerplate

The other side sends its draft protocol around the early discovery conference. An associate reads it by eye against the firm's last protocol and the court's model order, then asks litigation support whether the client's systems can do what it says. Nobody puts a price on a clause.

The expensive promises hide in ordinary wording: chat produced one message at a time, hundreds of search terms run as written, a privilege log that itemizes each email in a chain. Others promise metadata fields no system kept, phones the company does not own and backup tapes that no longer exist. Once the court enters the stipulation, a broken promise becomes a motion to compel.

Built foreDiscovery counselLitigation support leadsLitigation associatesLitigation partners

The Problem Today

A proposed protocol sets how much your client reviews and what it promises a court.

73%: of the cost of producing electronic documents is review published
10–14 h: of associate time to compare one draft by hand, unpriced our estimate

Compared by eye today

Drafts
Playbook
Model order
Data map

Nobody prices the clausesSix figures hide in chat, search terms and logs
Promises systems can't keepFields never kept, tapes destroyed, phones not owned

The Solution

Each clause comparedAgainst your playbook and the court's model order, both cited
Each promise testedAgainst the client's systems, retention, exports and devices
Each clause pricedIn review dollars, from the client's volumes and the firm's rates
Counsel decides each changeAccept, counter or reject; the partner signs off before it leaves

Built-in controls

Nothing goes to the other side unsigned
Each estimate shows its volumes, rate and unit
The client's data stays in the firm's workspace

What You Get

Counsel negotiates where the money is, and signs only promises the client's systems can keep.

≈2 h: of associate comparison per draft, down from 10–14 our estimate

Concessions spent where they payThe six-figure clauses hold most of the difference
A memo the partner reads fastBottom line, where the money is, fallbacks and risks
Their reply compared on arrivalThe next draft checked against what you sent

Nine screens, one draft

An ESI protocol taken apart, priced and redlined, provision by provision

A single step of the redline sits on each screen, with the role that relies on it.

01Redline with price tags
A redline of the other side's draft with each change priced
How it works
- The draft split into 47 provisions, each mapped to a playbook topic
- Deletions struck through and counters inserted, in place on the other side's own words
- Each change carries its reasons: playbook, model order, cannot deliver or cost
- A ledger sets $1,245,000 as proposed against our position, with 4 changes waiting
eDiscovery counselStarts from a draft already split, compared and priced, and sees which four changes still wait for a decision.
02Model order comparison
Each provision beside the court's model order and the firm's playbook
How it works
- Three columns: the other side's text, the model order and the playbook's preferred position
- Of 47 provisions, 27 match the model order, 10 depart from it and on 10 it is silent
- Each column cites its source, down to the page of the draft
- Where the model order is silent, the counter rests on the playbook and case law
Litigation associateStops comparing three documents by eye, and knows where the draft departs, and on what authority, before drafting the counter.
03Firm playbook
A firm playbook that shows how often each position held
How it works
- Preferred, fallback and walk-away language for each of 16 positions
- How often each held in past protocols, from 6 of 8 to 12 of 12
- Search terms: 50 or fewer with hit reports preferred, 75 as the fallback
- Past protocols note what the same opposing firm conceded last time
eDiscovery counselKeeps the firm's negotiating positions in one place, so each counter rests on what held before and on more than one lawyer's memory.
04Cannot deliver
A feasibility check that finds promises the client's systems cannot keep
How it works
- Each promise tested against the data map: systems, retention, exports and devices; six flagged in this draft
- The lab notebook exports PDF reports with an audit trail, so a database export is countered
- Metadata fields never kept, personal phones and destroyed tapes are flagged the same way
- Each flag waits for litigation support to confirm it against the data map
Director of litigation supportKeeps a court order from promising a field, an export or a tape the client's systems never had.
05What each clause costs
A cost estimate for each clause, as proposed and at the counter
How it works
- Each clause priced from the client's volumes at a blended $0.90 per document
- Twelve changes, one line each from proposal to counter, search terms first at $264,000
- Change the review rate or how chat is counted, and each estimate moves
- The 3 clauses over $100,000 hold $403,000 of the difference
Litigation partnerSees where the review budget goes before the call, and spends the firm's concessions away from the clauses worth six figures.
06Chat format, countered
A counter that re-prices its clause and moves the running total
How it works
- 200,000 chat messages hit the search terms: $180,000 to review one by one
- The counter produces 24-hour conversation slices instead: 44,400 slices, $40,000
- On a counter, agents insert the language, re-price the clause and re-check the promise
- Our position moves from $1,018,000 to $878,000, with 3 changes left
eDiscovery counselAgrees to produce chat without signing up for six figures of review, and keeps the reason, the citation and the price with the decision.
07Every change decided
A decision on every change, each logged and open to reopening
How it works
- 13 counters with replacement language and 1 rejection, the backup tapes
- The protocol stands at $523,000, $722,000 less than proposed: 58%
- The privilege log moves to a metadata log by chain: $126,000 to $31,000
- Any decision can be reopened, and each is logged with its reason
eDiscovery counselTakes a protocol to the partner with each change decided, priced and explained, and one figure for what the client would commit to.
08Before anything leaves the firm
A sign-off list that holds the redline until the partner signs
How it works
- Five steps: counsel decides all 14 changes; litigation support confirms them against the data map
- The client's in-house counsel approves the commitments and the budget
- The partner signs off, then the associate sends: agents never send
- The clean draft, priced: $523,000 against $1,245,000 as proposed
Litigation partnerSees in one list who still has to confirm, approve and sign before the redline leaves the firm.
09Meet and confer
A call plan with the issues ranked by the dollars at stake
How it works
- Each issue shows what we ask, the fallback and its price, and where it stands
- Search terms lead with $168,000 at stake, chat next at $140,000
- A trade sheet lists what is cheap to give and the two positions to hold
- Talking points cite the hit report, the case law and the tape certificate
Litigation associateWalks into the meet and confer knowing which concessions cost the client little and which two positions are worth holding.

Where an ESI protocol's review money sits, clause by clause

One proposed protocol of 22 pages, priced at a blended $0.90 per document from the client's own volumes.

Clause	As proposed	At our position
Search terms, 212 run as written	$264,000	$96,000
Chat, one message per document	$180,000	$40,000
Privilege log, each chain member itemized	$126,000	$31,000
Backup tapes, restored and searched	$92,000	Struck
Custodians, 32 named and anyone with knowledge	$88,000	$52,000
The whole protocol, 47 provisions	$1,245,000	$523,000

estimatedOur estimate.

Around the redline

The memo, the versions and the trail behind each decision

What counsel, the partner and the case team open around the redline.

Clean stipulation with decided changes applied and two open points in brackets, search terms and chat format, beside a sign-off list at 0 of 5 — **Open points in brackets**The clean stipulation applies each decided change as it is made. Search terms and chat still read open, waiting for counsel, until they are decided.

Backup tapes clause rejected and struck: the tapes were destroyed and the certificate of destruction is on file, $92,000 to $0 — **Backup tapes, struck**The tapes the draft asks to restore were destroyed in a data-center move. Counsel rejects the clause with that reason, and $92,000 comes off.

Privileged risk memo for the litigation partner: $1,245,000 as proposed, $523,000 at our position, where the money is, risks and fallbacks — **The partner's risk memo**Bottom line, where the money is, the two risks with no dollar figure and the fallbacks, drafted from the redline and edited by counsel.

Versions from the draft received to counsel's decisions, the first and latest compared: 14 changes, 6 promises flagged, $1,245,000 to $1,018,000 — **Each version, compared**The draft received, the agents' first redline of 16 changes, the associate's edits that dropped 2 as low value, and counsel's decisions.

Audit trail of 12 entries: counsel's counters with their reasons, a feasibility confirmation, and each agent's step from splitting the draft to pricing it — **Who decided what**Each decision and each agent action, newest first, with its reason. Entries cannot be edited.

Roles and duties for the case team: what counsel, the associate, litigation support, the partner and the client's in-house counsel may and may not do — **Who may do what**The associate drafts but cannot decide. Litigation support confirms feasibility but takes no legal position. Only the partner signs off.

What the draft asked for that the client's systems never had

Four of the six promises the draft asked for that the client's systems could not keep.

An export that does not exist

The lab notebook holds 38,000 entries and exports PDF reports with an audit trail, nothing more. The counter offers those reports.

Metadata fields nobody kept

The draft lists 38 fields for each document, and 9 of them do not exist in the client's systems. The counter takes the model order's 24, as kept in the ordinary course.

Phones the company does not own

Forensic images of 32 custodians' phones, which are personal devices. The counter asks for text messages from the 6 custodians who used text for work, with their consent.

Tapes destroyed long before the case

Restoring and searching the old backup tapes would have cost $92,000, and the tapes are gone. The clause is struck, with the certificate of destruction.

Behind the redline

Six agents read, compare, test, price and draft; counsel rules on each change

The redline is prepared in six parts, and each part's agent lists what it will not do.

Clause splitter

Splits the draft into provisions and maps each one to a playbook topic.

Never rewords the other side's text

Playbook comparer

Compares each provision with the firm playbook and the court's model order, citing both.

Never treats a playbook position as the law

Feasibility checker

Tests each promise against the client's data map: systems, retention, exports and devices.

Never assumes a system can do what the data map does not show

Cost estimator

Prices each clause in review dollars from the client's volumes and the firm's rates.

Never presents an estimate as a vendor quote
Shows its volumes, rate and unit each time

Redline drafter

Drafts the counter language, the reason and a negotiation note for each change, and the risk memo.

Never sends anything to the other side

Negotiation tracker

Follows each issue across the exchanges and keeps the clean stipulation in step.

Never marks an issue agreed without counsel's confirmation

Questions on pricing and redlining an ESI protocol

What is an ESI protocol review?

An ESI protocol review reads the other side's proposed protocol provision by provision, sets each against the firm's playbook and the court's model order, prices it and tests whether the client's systems can keep it. eDiscovery counsel decides each change.

How is a clause in an ESI protocol priced?

From the client's own volumes in the data map, the hit reports and the firm's review rates. Each estimate shows its volumes, rate and unit, and moves when an assumption such as the review rate changes.

Must we agree to produce chat as single messages?

That is what a draft often asks for, and it is usually its costliest clause. Courts have accepted chat produced in conversation windows around a responsive message, such as one channel's messages on the same day. The solution prices both forms and cites the case law beside the counter.

What happens when the draft asks for data the client does not have?

The feasibility checker tests each promise against the client's data map. A field the systems never kept, an export a system cannot make, a phone the company does not own or a tape already destroyed is flagged, then countered or struck, and litigation support confirms.

Does it negotiate with opposing counsel?

No. Agents do not send anything to opposing counsel or file with the court. The associate sends the redline after the partner signs off, and an issue is marked agreed only when counsel confirms it.

eDiscovery & Litigation Support

Price a protocol
your firm already signed.

Choose one protocol your firm has negotiated, with its data map, and we will price its clauses and test its promises with your team.

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ESI Protocol

The costliest clauses in a proposed ESI protocol look like boilerplate

The Problem Today

The Solution

What You Get

An ESI protocol taken apart, priced and redlined, provision by provision

A redline of the other side's draft with each change priced

Each provision beside the court's model order and the firm's playbook

A firm playbook that shows how often each position held

A feasibility check that finds promises the client's systems cannot keep

A cost estimate for each clause, as proposed and at the counter

A counter that re-prices its clause and moves the running total

A decision on every change, each logged and open to reopening

A sign-off list that holds the redline until the partner signs

A call plan with the issues ranked by the dollars at stake