ESI protocols have become an increasingly contentious issue in e-discovery. While ideally setting the framework for basic issues such as form of production, metadata fields, and load file specifications, ESI protocols have become bogged down in negotiations over search procedures and family productions of hyperlinked documents. Worse, some parties memorialize preservation procedures in ESI protocols.

As reflected in the recent In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation case, noncompliance with preservation provisions in an ESI protocol can expose parties to severe sanctions under Federal Rule of Civil Procedure 37(b)(2)(A). Keurig also offers other lessons on key ESI issues including that courts may defer to an organization’s reasonable information-related policies in connection with discovery-based decisions.

Rule 37(b)(2)(A) Sanctions vs. Rule 37(e) Sanctions

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