Negotiation of electronically stored information (ESI) protocols is always a complicated endeavor. There are those who prefer to leave holes in the protocol, allowing the parties latitude and thinking it can be sorted out later if there is a challenge to the methodology. Other attorneys prefer to outline every aspect of the ESI preservation, collection, review and production in the protocol to avoid uncertainties in the process. And still others fail to address certain items they do not know must be included—a failure that many courts will no longer excuse.
When it comes to the inclusion of technology assisted review (TAR) methodology in the protocol, the question is often: If it need not be addressed under applicable rules or practices, should it be? A recent decision in the District of New Jersey demonstrates the pitfalls of including requirements for the parties to disclose and agree to the use of TAR within the protocol. But it likewise demonstrates the importance of agreement on TAR methodology. This article summarizes the recent decision and discusses the potential practical implications for federal practitioners in New Jersey.