The next time you attend a conference or working group meeting on the topic of e-discovery, ask attendees what they consider the most contentious issue between parties in e-discovery practice today.  Even as you are being escorted off the dais for disrupting the proceedings, you may hear a popular answer—“ESI protocols.”

Under Federal Rule of Civil Procedure 26(f), as amended as part of the 2006 package of e-discovery amendments to the Federal Rules, parties must develop a “proposed discovery plan,” which “must state the parties’ views and proposals on…any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced.”

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