BarbriSFCourseDetails
  • videocam Live Webinar with Live Q&A
  • calendar_month May 6, 2026 @ 1:00 PM ET/10:00 AM PT
  • signal_cellular_alt Intermediate
  • card_travel Employment and Workers Comp
  • schedule 90 minutes

ESI Protocols in Employment Litigation: Pre-Drafting Strategies, Key Provisions, TAR and AI, Enforcement

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$252.45
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Discount expires 4/22/26

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About the Course

Introduction

This CLE webinar will examine the negotiation and drafting of electronically stored information (ESI) protocols in employment litigation. The panel will discuss pre-drafting strategies, including defining the scope of preservation and the use of TAR and AI, examine key provisions to be included in the agreement, and offer best practices for mitigating the risk of discovery conflicts surrounding the preservation and collection of ESI.

Description

The preservation and collection of ESI during employment litigation have become more challenging for counsel and their employer clients given the increasing amounts of client data, new data types, and methods of communication that go beyond office email to include Teams, Zoom, and short message collaborative tools like Slack. Additionally, many employees are using their own devices to perform work. 

While Federal Rule of Civil Procedure 26 requires that the parties discuss the disclosure, preservation, and discovery of ESI, it does not offer any particularities. Therefore, to provide more structure for this complicated process and potentially limit conflict, many parties are choosing to negotiate and draft an ESI protocol, defining how digital data is identified, preserved, collected, and produced during litigation.

Key aspects of an ESI protocol include definitions, search terms, privilege logs, technology-assisted review and AI, email threading, attachments, and clawback provisions.

Even though parties may choose to use ESI protocols to mitigate the risk of conflict, the ESI protocol may become the subject of the conflict if not properly drafted or when boilerplate documents are used.

Listen as our expert panel examines the negotiation and drafting of ESI protocols in employment litigation. The panel will discuss pre-drafting considerations, review key provisions to be included in the agreement, and offer best practices for mitigating the risk of conflict during the discovery process.

Presented By

Gretchen N. Marty
Senior Counsel
Littler Mendelson PC

Ms. Marty provides focused guidance on information governance and electronic discovery matters to the firm’s lawyers and their clients, including case and client-specific advice about meeting preservation obligations; "meet and confer" obligations; efficient and effective data harvesting strategies; data culling and cost reduction; review and production and implementation of cost-shifting; and motion practice. She frequently conducts internal training for firm attorneys on eDiscovery “best practices,” to ensure that the firm offers its clients consistent and competent counsel in the field of eDiscovery. Prior to joining the firm, Ms. Marty worked at a boutique litigation firm where she helped build an eDiscovery team within the firm. She oversaw eDiscovery strategies for complex litigation cases for multi-national companies in the banking, insurance and automotive industries. She frequently speaks on eDiscovery and litigation technology issues.

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Kyla Sutter
Attorney
Mayer Brown LLP

Ms. Sutter’s work particularly emphasizes labor and employment litigation and counseling on behalf of employers. She is an experienced trial attorney, having litigated numerous jury trials, each of which resulted in a complete defense verdict. Ms. Sutter leverages that trial experience through her regular litigation and counseling work, understanding how events can later be perceived by a judge or jury. With that insight, she guides her clients on how to predict and solve problems proactively and appropriately manage ongoing litigation. Ms. Sutter represents clients in a broad variety of actions, including class and collective actions, individual claims, administrative proceedings, mediations and arbitration. She also provides employment counseling on compliance issues, policies and practices, and investigations, as well as maintains a business transaction practice, advising on M&A due diligence. 

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Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.


  • Live Online


    On Demand

Date + Time

  • event

    Wednesday, May 6, 2026

  • schedule

    1:00 PM ET/10:00 AM PT

I. Introduction

A. The evolving technology/data landscape making the collection and preservation of ESI more challenging

B. FRCP 26, 34, and other applicable federal rules

C. State law equivalents

II. Pre-drafting strategies

III. Key provisions in the ESI protocol

A. Definitions

B. Search terms

C. Scope of preservation

D. TAR/CAL/AI

E. ESI processing and analysis

F. Production

G. Clawback provision

H. Other

IV. Enforcement

V. Key takeaways

The panel will review these and other important issues:

  • How might the use of ESI protocols minimize the risk of conflict during the discovery process? 
  • What key provisions should be included in an ESI protocol? What are unique considerations when drafting the ESI protocol for employment litigation?
  • When can ESI protocols become the source of conflict? What are best practices for mitigating this risk?