Burt Garland, a veteran litigator at Ogletree Deakins, and I were recently comparing notes on what we’ve seen go south when there’s pronounced contention between parties where electronic evidence is implicated, and how a well-negotiated and crafted agreed forensic and discovery protocol can work to calm the waters.
But the devil’s in the details. Given how often Burt and I have seen agreed-on protocols stir rather than calm the waters, we thought it would be helpful to share the lessons we’ve learned the hard way. Our initial note-comparing exercise grew into an article, “Discovery Without the Static: A practitioner’s roadmap for negotiating and executing agreed forensic and eDiscovery protocols,” published in the Arizona Bar Association’s 2026 Expert Witness Guide.
Whether the use of ESI protocols is new to you or a recurring frustration, you may want to check out the article for some practical guidance. Some areas addressed include:
- When to propose an agreed protocol, including strategic considerations and timing
- The main components of an effective protocol and what each should cover
- Alternative drafting approaches
- Who should be included in the drafting process
- Troublesome areas that require special attention
- How to select and agree on a neutral expert or vendor to execute
It’s worth the ounce of time up front with a protocol to avoid the pound of pain (and cost) later.
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