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Periodically, I strive to pen something practical and compendious on electronic evidence and eDiscovery, drilling into a topic, that hasn’t seen prior comprehensive treatment. I’ve done primers on metadata, forms of production, backup systems, databases, computer forensics, preservation letters, ESI processing, email, digital storage and more, all geared to a Luddite lawyer audience. I’ve long wanted to write, “The Annotated ESI Protocol.” Finally, it’s done.
The notion behind the The Annotated ESI Protocol goes back 40 years when, as a fledgling personal injury lawyer, I found a book of annotated insurance policies. What a prize! Any plaintiff’s lawyer will tell you that success is about more than liability, causation and damages; you’ve got to establish coverage to get paid. Those annotated insurance policies were worth their weight in gold.
As an homage to that treasured resource, I’ve sought to boil down decades of ESI protocols to a representative iteration and annotate the clauses, explaining the “why” and “how” of each. I’ve yet to come across a perfect ESI protocol, and I don’t kid myself that I’ve crafted one. My goal is to offer lawyers who are neither tech-savvy nor e-discovery aficionados a practical, contextual breakdown of a basic ESI protocol–more than simply a form to deploy blindly or an abstract discussion. I’ve seen thirty-thousand-foot discussions of protocols by other commentators, yet none tied to the document or served up with an ESI protocol anyone can understand and accept.
It pains me to supply the option of a static image (“TIFF+”) production, but battleships turn slowly, and persuading lawyers long wedded to wasteful ways that they should embrace native production is a tough row to hoe. My intent is that the TIFF+ option in the example sands off the roughest edges of those execrable images; so, if parties aren’t ready to do things the best way, at least we can help them do better.
Fingers crossed you’ll like The Annotated ESI Protocol and put it to work. Your comments here are always valued.
Ball in your Court 
Gregg T said:
Craig – great stuff as always. Two quick questions:
Is there any reason to still use TIFFs instead of PDFs? It feels like we are still trying to recreate what a production would look like if was printed on paper when we we should be thinking solely about how it displays on screen. PDFs are not native productions (you sold me on that a few years ago) but much closer to how we all work. And as far as I know, all eDisco platforms can import in PDFs.
Also within the metadata section, you suggest using a custodian field? Why not All Custodians? Same with path/all paths.
Thanks in advance for any insights!
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craigball said:
I added the OtherCustodians field. It was discussed in the text but missed when compiling the metadata list. THANKS for catching that error.
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craigball said:
If I’ve got to swallow static images, I much prefer PDFs to TIFFs for a host of reasons, not least of which they are more efficient in their compression and natively support color. They can carry searchable text and support redaction at both the image and text layers. I hate TIFFs with a passion; but so many opponents are intransigent, insisting on TIFFs over better, cheaper alternatives. I’ve had to hold my nose to get protocols in place. So, hell, yes, choose PDFs over TIFFs and native over both! Did I miss the All Custodians field? I thought I dealt with it in the text but must have missed it in Attachment A. I’ll look. Sorry.
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Tom O'Connor said:
Great tool, very useful and I’m already pointing clients to it. Picking one small nit, however: although the FRCP does not explicitly require a protocol some local rules and/or judges’ bench rules do. The latter may even be case specific, so always remember to check the local rules where your case arises.
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craigball said:
Excellent point, Tom! Years ago, I worked with some wonderful lawyers in Maryland to develop model ESI protocols (for native and TIFF+ productions) that were published by and for use in Maryland federal courts. These were “guidelines,” not rules; but when federal judges set guidelines, counsel are well-advised to pay attention.
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Michael D. Berman said:
Craig was instrumental in that drafting process. The Court’s ESI Principles are posted at https://www.mdd.uscourts.gov/sites/mdd/files/ESI-Principles.pdf
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Gregg T said:
Keeping fighting the good fight on the native productions! You convinced a former client of mine years ago, who then convinced me, and I have been spreading the word ever since.
Thanks again.
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Doug Austin said:
Great resource, Craig! I love how you walk-though the protocol for the “Luddite”, then provide an exemplar in the last section (even if it is the “clunky TIFF+ static images” version). 🙂
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craigball said:
You know it kills me to offer something that’s not a full native production! But life is short, and battleships turn slowly. Hopefully, this sop to the wasteful ugliness of TIFF+ sands off a few of its roughest edges. Thanks.
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Michael Simon said:
Hi Craig. Thank you for posting this, it is greatly appreciated. I do want to note that the link to the PDF works in MS Edge, but it does not seem to work in Chrome.
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craigball said:
Thank you. I use Chrome and the link works for me, If the link works for you in Edge, then the hyperlinked URL is not corrupt. Might it be a security setting on your side? I appreciate the ‘heads up’ and will inquire if others are having difficulties.
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Michael Simon said:
Interesting . . . I’m not seeing anything that I set in Chrome or the MS Firewall that should be interfering with it. It won’t work as a link or as a copy/paste into a new window – it just doesn’t do anything, without any of the usual associated security messages.
In any event, I have the PDF and like all of your work that you make available to all of us, it is greatly appreciated!
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Tom O'Connor said:
I use Chrome almost exclusively and the links are working for me on several different devices
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Graeme T said:
RE TIFFs; 198 of the Am Law 200 are using the same solution for their eDiscovery. That solution (currently) ONLY allows single page group IV B&W TIFF Images (&JPEG) for production loads. And PDF’s are rife with issues when it comes to font & document settings in that software’s viewer. This might be a case of the tail wagging the dog, but here we are. Long live JPEG & Group IV TIFF!!! Maybe I can get ChatGPT to start writing my ESI protocols. haha. “Relativity only accepts single page, Group IV TIFs, or JPGs.” https://help.relativity.com/RelativityOne/Content/Relativity/Relativity_Desktop_Client/Importing/Importing_an_image_file.htm
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craigball said:
No, Relativity accepts native forms. Surely you don’t think anyone but Luddite lawyers use TIFFs in the workplace? Debating the merits of TIFFs versus PDFs as forms of production is like debating the merits of oxen versus plow horses. One is probably better than the other, but they both are lousy ways to till a field in the 21st century.
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Graeme T said:
I’ve always been more of an ‘Oxen man’ myself. 😉 And True, Relativity does accept native forms & I agree they are the pinnacle. However, as long as we have lawyers, depositions, and legal filings including exhibits we’ll still ‘need’ bates stamped documents to attach & reference. I’ve literally seen parties fight over ‘color’ print outs because the bates stamped version was in B&W. And PDFs are superior to TIFFs (except for ‘font issues’). And if all the restaurants only take Visa, the AMEX card is useless.
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craigball said:
Since you’re posting at this blog, I assume that you may follow this blog, so rather than rise up on my hind legs foaming at the mouth, may I simply point to this post: https://craigball.net/2019/06/14/who-says-you-cant-bates-number-native-productions/#more-5608
If a restaurant takes only Diners Club, it will soon be a nail salon.
Okay, a little foam (from the cited post):
The question isn’t whether there’s a need and place for Bates numbered static forms (i.e., paper and electronic printouts), but when should conversion occur, applied to which parts of a production, and importantly, who gets to decide and at what cost (measured in money, utility and completeness)?
Native production splits the process of Bates numbering. The producing party retains the right to assign the Bates number to the file produced. The right to add page numbers belongs to the party who prints the electronic evidence for use in a proceeding. The Bates number assigned by the producing party must be embossed on every page of the printout along with the page numbers. That way, the producing party can always relate a printed item to its source file. In turn, all parties can reference the printout by Bates number and page number in the conventional way lawyers cite to exhibits in proceedings. Yes, Virginia, there really is a Bates number and pagination method for native files.
You may ask, “Won’t that mean that different printouts could have different pagination? Won’t that be confusing?” It’s possible that slight variations in page breaks could occur if the same file is printed on different systems and printers. In theory, that could prompt confusion; but in practice, it’s not a problem. The record is perfectly clear with respect to any version used by a witness or presented to the Court. You can concoct a situation where it’s chaos, but the reality is that it works quite well.
The reason we never faced this presumptive confusion before e-discovery was because, if you used a document I’d produced to you in discovery, that document bore the Bates number I’d stamped on it. You were forced to use the pagination I’d assigned. You couldn’t print a version with different pagination because I hadn’t produced the electronic evidence to you; I’d produced a printout. That was convenient and acceptable back when the evidence and a printout were useful and complete in the same ways. However, ESI and printouts are not the same anymore. They aren’t useful in the same ways. They aren’t complete in the same ways. They don’t cost the same to use. Notwithstanding these differences, producing parties still claim the exclusive authority to assign pagination at the time of production. That is, they demand the power to impose the wrong form of unitization at the wrong point in the discovery process.
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Graeme T said:
You assume correctly, and no need to rise up or produce foam. You are preaching to a member of the choir.
You said: “You may ask, “Won’t that mean that different printouts could have different pagination? Won’t that be confusing?””
I don’t need to ask. I’ve lived these situations and they were chaos. They shouldn’t have been, but real world practicing attorney’s are always looking for an opposing sides ‘mistakes’.
While you and I understand the pagination difference (and others should too). I’ve found the experience similar to explaining time zones in processing or peoples affinity for Nickelback. Some things exist and are difficult to comprehend. Maybe I am more of a plow horse kind of person.
https://imgflip.com/i/770dg2
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John Tredennick said:
Putting aside the native/image discussion, I don’t understand why anyone would use a TIFF and then create a JPG for color docs (assuming you can even pick them out in a programatic fashion) instead of PDFs. PDFs are much easier to share, print and pass around and they handle color without having to change formats. More important, a color PDF is a fraction of the size of a JPG and there is no deterioration if you enlarge the page.
Also, why would you want to be stuck with a special viewer just to go from page to page. It just amazes me that anyone still uses TIFF when you have a much superior format in PDF.
Many people think TIFF is an open format and that PDF is proprietary. The opposite is true. Adobe owns the TIFF format, acquiring it from Deskview in the 80s or early 90s. It hasn’t improved on the format since about 93, which is why color TIFF images are so large.
In contrast, PDF is an open format. It can be made and read by anyone. The only real negative is that the old lit support products only supported TIFFs and that may still be true for the newer old software products.
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craigball said:
No one has ever accused me of pushing the use of TIFF images. Here’s what I wrote in response to a comment before yours, John:
“If I’ve got to swallow static images, I much prefer PDFs to TIFFs for a host of reasons, not least of which they are more efficient in their compression and natively support color. They can carry searchable text and support redaction at both the image and text layers. I hate TIFFs with a passion; but so many opponents are intransigent, insisting on TIFFs over better, cheaper alternatives. I’ve had to hold my nose to get protocols in place. So, hell, yes, choose PDFs over TIFFs and native over both! “
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John Tredennick said:
Right on Craig. I couldn’t agree with you more. As usual.
JT
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Damian A said:
Hi Crag can’t seem to get the report from the link, would love to read it!
Regards,
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craigball said:
Sorry. Don’t know what to say to that as it’s been download from that link 1,205 times this week. Thanks for your interest
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