How to Craft an Effective ESI Agreement

December 19, 2017 Casey C. Sullivan

With fewer and fewer cases going to trial, today’s discovery process has become one of the main dispute resolution mechanisms in the civil litigation system. But this process can easily become unhinged if not properly managed, resulting in discovery that is expensive, risky, and overly complex. It can also be used to strong-arm parties who have fewer resources, less expertise or who are otherwise ill-equipped to handle large amounts of information.

One of the tools litigators have to help manage this process, and to make sure that discovery plays out as predictably and advantageously as possible, is an Electronically Stored Information agreement. An ESI agreement sets forth the procedures and protocols parties will follow in order to meet their respective obligations. These agreements are then typically entered as a stipulated order that will govern the discovery process through the rest of the case. They generally help minimize the chances that resource-intensive disputes will arise over discovery. And they’re not just for the most document-intensive cases. A well thought-out agreement can serve a valuable purpose in even smaller cases, helping ensure that the discovery process remains proportional to the needs of the case.

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