When you're facing discovery in a mass tort or MDL case, your ESI protocol is crucial. It's the document that determines whether you'll spend the next two years drowning in irrelevant data or actually litigating the case. Here's a template you can adapt for your next negotiation, built around the proportionality principle that Federal Rule of Civil Procedure 26(b)(1) requires.
Purpose of the Template
This ESI protocol template structures your discovery scope negotiations in mass tort and MDL cases. It forces both sides to define custodians, date ranges, search methodology, and production formats before anyone starts collecting data. The template emphasizes proportionality at each decision point, keeping discovery focused on evidence that matters for the core liability and causation issues.
You'll customize this for your specific matter, but the framework addresses the questions that courts expect parties to resolve early: Who are the key players? What time period actually matters? How will you identify responsive documents without reviewing millions of irrelevant files?
Prerequisites
Before you start negotiating with this template, ensure you have:
The MDL standing order. Courts typically issue baseline eDiscovery requirements before negotiations begin in MDL cases. Your protocol must comply with those requirements or explain why you're proposing something different.
Your proportionality analysis. Under Rule 26(b)(1), consider the importance of the issues at stake, the amount in controversy, the parties' relative access to information, the parties' resources, and whether the burden of discovery outweighs its likely benefit. Document this analysis before you propose scope limitations.
Common benefit order details. If you're on the plaintiff side, understand how discovery costs will be shared across the plaintiff group. This affects your negotiating position on scope.
Your core liability theory. You can't negotiate custodians and date ranges until you know what you're trying to prove. Map your claims to the evidence you actually need.
The Template
ESI PROTOCOL FOR [CASE NAME]
1. SCOPE AND PROPORTIONALITY
1.1 The parties agree that discovery shall be proportional to the needs
of the case under FRCP 26(b)(1), considering:
- Core issues: [liability theory, causation claims, damages framework]
- Amount in controversy: [specify if known]
- Burden and expense relative to likely benefit
1.2 Discovery shall focus on documents and ESI directly relevant to
[specify: product design decisions, manufacturing processes, safety
testing, marketing claims, regulatory submissions, or other core issues].
2. CUSTODIANS
2.1 Defendant shall produce ESI from the following custodians:
- [Title/role, e.g., Product Safety Director, 20XX-20XX]
- [Title/role, e.g., VP Marketing, 20XX-20XX]
- [Add 5-8 key custodians with date ranges]
2.2 Plaintiff shall produce ESI from:
- Named plaintiff(s)
- [Treating physicians, if relevant]
- [Other custodians specific to plaintiff's claims]
2.3 Either party may propose additional custodians upon showing that
the custodian likely possesses unique, non-duplicative information
material to core issues.
3. DATE RANGES
3.1 Defendant ESI: [Start date] through [End date]
Rationale: [e.g., Covers product development through plaintiff's
injury date plus reasonable post-event investigation period]
3.2 Plaintiff ESI: [Start date] through [End date]
Rationale: [e.g., Covers pre-injury baseline through current
treatment and damages]
4. SEARCH METHODOLOGY
4.1 The parties shall negotiate search terms using an iterative process:
- Each side proposes initial terms
- Parties test terms on sample data sets
- Parties refine terms to balance recall and precision
- Target: [X]% precision, eliminating terms that generate >Y%
irrelevant hits
4.2 Acceptable search methods:
- Keyword searches using Boolean operators
- Concept searches (if parties agree on validation methodology)
- Technology-assisted review (TAR) for document sets exceeding
[specify threshold, e.g., 500,000 documents]
4.3 Either party may challenge proposed terms as overbroad under the
proportionality standard. Disputes shall be resolved by [meet-and-confer
followed by court intervention if necessary].
5. PRODUCTION FORMAT
5.1 Documents shall be produced as:
- Native files for spreadsheets and databases
- Single-page TIFF with searchable OCR for paper documents
- [Specify format] for email and attachments
5.2 Metadata fields shall include:
- [List required fields: custodian, date created, date modified,
author, recipients, etc.]
5.3 Productions shall include load files in [specify format compatible
with parties' review platforms].
6. PRIVILEGE AND CLAWBACK
6.1 Parties shall comply with [MDL standing order provisions on
privilege] and [Federal Rule of Evidence 502(d)](https://www.law.cornell.edu/rules/fre/rule_502).
6.2 Inadvertent production of privileged material does not waive
privilege. Receiving party shall [return/destroy] upon notice.
7. COST ALLOCATION
7.1 Each party bears its own costs of collection, processing, and review.
7.2 [If applicable: Plaintiff-side costs shall be allocated under the
common benefit order dated [date].]
8. TIMELINE
8.1 Custodian data collection: Complete by [date]
8.2 Search term negotiation: Complete by [date]
8.3 Rolling productions: Begin [date], complete by [date]
8.4 Supplemental productions: Within [X] days of identifying new
responsive material
9. DISPUTE RESOLUTION
9.1 Discovery disputes shall be raised first in meet-and-confer.
9.2 Unresolved disputes shall be presented to the court with a joint
statement not exceeding [X] pages per side.
Customizing the Template
Section 1 (Scope): Replace the bracketed core issues with your actual liability theory. If you're defending a pharmaceutical mass tort, focus on "clinical trial design, adverse event reporting, and warning label development." If prosecuting a defective product case, emphasize "engineering specifications, failure analysis, and pre-market testing protocols."
Section 2 (Custodians): Start with 5-8 custodians per side. More than that and you're probably not being proportional. For defendants, focus on decision-makers with direct knowledge of the product or conduct at issue. For plaintiffs, limit it to the named plaintiff and essential medical providers unless you can show why additional custodians have unique, material information.
Section 3 (Date Ranges): Tie your dates to specific events. Don't request "all documents from 2010 to present" when the relevant design decisions happened in 2015-2017. If opposing counsel proposes a date range you think is disproportionate, calculate the data volume difference and present it as a burden argument.
Section 4 (Search Terms): The iterative process matters. Initial term lists are always overbroad. Test them, measure precision, and eliminate terms that return 10,000 hits with 2% relevance. Document this process because courts want to see that you negotiated in good faith.
Section 7 (Costs): If you're on the plaintiff side in an MDL, confirm how the common benefit order allocates discovery costs. If you're defending, consider whether requesting party pays principles apply to unusually burdensome requests.
Validation Steps
Before you finalize your protocol:
Check MDL standing orders. Compare every provision in your protocol to the court's baseline requirements. If you're proposing something narrower or broader, note it and be prepared to justify the deviation.
Run a proportionality audit. For each custodian, date range, and search term category, write one sentence explaining why it's proportional to the needs of the case. If you can't, cut it.
Test your search terms. Don't agree to terms without testing them on a sample data set. A term that looks reasonable in theory might return 50,000 irrelevant hits in practice.
Calculate data volumes. Estimate how many gigabytes or documents your proposed scope will generate. If the number is higher than you can realistically review, your scope isn't proportional.
Get sign-off from your litigation team. Your ESI protocol commits you to specific productions on specific timelines. Make sure trial counsel agrees that the custodians and date ranges will actually produce the evidence you need to prove your case.
Courts expect you to negotiate ESI protocols seriously in mass tort cases. A well-drafted protocol that demonstrates proportionality analysis won't just survive judicial scrutiny. It'll save you from spending the next two years arguing about discovery scope when you should be litigating liability.
