Establishing a Plaintiff-Friendly E-Discovery Framework in Asymmetrical Litigation

By: Melissa Ryan Clark,


With discovery’s shift to electronically stored information (ESI) has come a torrent of ever-changing best practices. Many of the common guideposts for managing eDiscovery aim to facilitate a transparent and collaborative process—but are tailored to the needs of large corporate parties with enormous amounts of data.

The methods and provisions that work well for a corporation may saddle a smaller party with unnecessary, unrealistic, and disproportionate burdens. Asymmetrical litigation, in particular, requires a close look at how to conduct discovery in a way that gathers necessary evidence while setting an effective foundation for parties on different footing.

Negotiate a Discovery Framework

At the outset of discovery, counsel should collaboratively develop a framework to govern document production—most commonly: a protective order (PO), ESI protocol, and technical specifications for production (Tech Specs).

Before committing to a model order or either party’s longstanding template, consider whether each provision ensures your access to the evidence you need for trial, allows you reasonable use of that evidence throughout the case, and does not provide cover for unreasonable discovery conduct.

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