When opposing counsel delays discovery, it might be tempting to slow down your own obligations. However, this approach can lead to sanctions. Courts do not accept reciprocal non-compliance as a defense. According to Federal Rules of Civil Procedure 26(d)(3), discovery by one party doesn't require others to delay theirs. Your production obligations are independent of the other side's actions.
This template provides a production protocol that establishes your compliance from day one, creates an audit trail that can withstand a motion to compel, and prevents the temptation to engage in tit-for-tat games that courts consistently reject.
Purpose of This Template
The Discovery Production Protocol sets your team's commitment to meet discovery obligations, regardless of the opposing party's behavior. Use it to:
- Document your production timeline and methodology before disputes arise.
- Create a record showing good-faith compliance efforts.
- Establish clear internal accountability for production milestones.
- Provide court-ready evidence if faced with a motion to compel.
The protocol is useful for both plaintiff and defendant teams, especially when you anticipate ESI protocol negotiations that might delay as production deadlines loom.
Prerequisites
Before implementing this protocol, ensure:
- Litigation hold is in place. Your Records Freeze must be active and documented, assuming custodians have received Legal Hold notices.
- Preliminary data mapping is complete. Identify systems holding potentially responsive ESI, even if collection isn't finished.
- Production counsel is identified. A legal team member must own discovery compliance decisions.
- Basic ESI capability assessment is done. Ensure you can search, deduplicate, and produce documents without vendor assistance.
If you're negotiating an ESI protocol with opposing counsel, this template becomes even more critical. As one court noted, the proper response is "for the parties to reach prompt agreement as to an ESI protocol, not for delaying production."
The Template
Copy this protocol into your matter management system and customize the bracketed sections for your case.
DISCOVERY PRODUCTION PROTOCOL
Matter: [Case name and docket number]
Effective Date: [Date protocol adopted]
Production Counsel: [Name and contact]
1. INDEPENDENT COMPLIANCE COMMITMENT
[Party name] commits to meet all discovery obligations on the schedule set by Rule 26 and this Court's scheduling order, independent of opposing party's discovery performance. This commitment applies to:
- Initial disclosures (Rule 26(a)(1))
- Interrogatory responses (Rule 33)
- Document production (Rule 34)
- ESI production in native or near-native format as appropriate
Rationale: Courts have consistently held that "one party's failure to comply with certain rules and procedures isn't an excuse for another party to do the same." (Harrison v. Comm'r Gary Lanigan, 2016 WL 3626524). This protocol documents our independent compliance posture.
2. PRODUCTION TIMELINE
| Milestone | Target Date | Responsible Party | Status |
|---|---|---|---|
| Complete custodian interviews | [Date] | [Name] | |
| Finish data collection | [Date] | [Name] | |
| First production (priority custodians) | [Date] | [Name] | |
| Rolling production complete | [Date] | [Name] | |
| Privilege log delivered | [Date] | [Name] |
Update frequency: Weekly status review every [day] at [time].
3. ESI PROTOCOL POSITION
While negotiating an ESI protocol with opposing counsel, production will proceed using these default parameters:
- Search methodology: [Controlled Vocabulary / TAR / manual review]
- Production format: [Native with load file / TIFF with metadata / PDF]
- Deduplication: [Global / custodian-level / none]
- Redaction approach: [Native redaction / TIFF burnout]
If ESI protocol negotiations extend beyond [date]: We'll produce under these parameters and supplement if the final protocol requires different treatment. We won't delay production waiting for protocol finalization.
4. OPPOSITION NON-COMPLIANCE HANDLING
If the opposing party fails to meet their discovery obligations:
- Document the failure: [Responsible attorney] logs the specific obligation missed, date due, and date noticed.
- Meet and confer: [Responsible attorney] initiates a good-faith conference per Rule 37(a)(1).
- Do NOT delay our production: Our timeline in Section 2 remains binding regardless of the opposition's performance.
- Motion practice if needed: If meet-and-confer fails, [Responsible attorney] files a motion to compel addressing their non-compliance separately from our compliance.
Prohibited responses: Team members may not condition our production on receiving opposing party's discovery first. As courts have held, "A party may not excuse its failure to comply with discovery obligations by claiming that its opposing party is similarly delinquent. Nor may a party condition its compliance with discovery obligations on receiving discovery from its opponent." (Genentech, Inc. v. Trustees of University of Pennsylvania, 2011 WL 7074208).
5. COMPLIANCE DOCUMENTATION
For each production, [Production counsel] will maintain:
- Production transmittal letter with Bates range and custodian list
- Collection certification from IT or vendor
- Search and review methodology memo
- Privilege log (if applicable)
- Any technical issues encountered and resolution
Retention: All compliance documentation retained until [final judgment + appeals period + 1 year].
How to Customize It
Timeline section: Insert your actual case deadlines. If you have a Rule 26(f) conference scheduled, build backward from that date. For complex ESI matters, budget at least two weeks for collection and another two weeks for review before the first production.
ESI protocol position: If producing email, specify whether you'll include attachments separately or family them. If dealing with databases, note whether you'll produce query results or database extracts. The goal is to document a reasonable approach you can defend if negotiations stall.
Opposition non-compliance handling: Assign a specific person to track missed deadlines. This can't be a "team responsibility" -- someone needs to own the log. Typically, the associate managing the document review is the right choice.
Compliance documentation: Adjust the retention period based on your jurisdiction's appeal timeline. Some states have longer appeal windows affecting how long you'll need this audit trail.
Validation Steps
After customizing the protocol:
Calendar integration check. Every date in Section 2 should appear in your matter calendar with reminders at T-minus-7 days and T-minus-2 days. If your calendar doesn't reflect the protocol, the protocol is fiction.
Custodian interview alignment. Pull your Legal Hold custodian list. Does Section 2's timeline give you enough time to interview each custodian and identify their data sources? If not, adjust your collection target date.
Technical capability verification. Can you execute the ESI protocol position in Section 3 with your current tools? If you listed "native with load file" but your vendor only produces TIFF, address the disconnect now.
Team acknowledgment. Every person named in the Responsible Party column should receive a copy of the protocol and confirm they understand their obligations. Get email confirmation -- you'll want it if someone later claims they didn't know their deadline.
Opposing counsel notice. Consider sending a courtesy copy of Section 1 (Independent Compliance Commitment) to opposing counsel after your first meet-and-confer. It signals your posture and creates a record that you've committed to independent compliance from the start.
The protocol works because it removes decision-making during the heat of discovery disputes. When opposing counsel misses their third interrogatory deadline, your team won't debate whether to slow-walk document production -- the protocol already answered that question. You'll produce on schedule, document their non-compliance separately, and let the court sort out their failures without contaminating your compliance record.
