We’re starting to see a lot of cases where the parties agree to an ESI Protocol! So, here are ten ESI Protocol lessons learned from recent case law rulings!
Here are the ten ESI Protocol lessons incorporating eleven cases!
#1: Involve the Court to Help Resolve ESI Protocol Disputes
Let’s start with one where the parties did a smart thing. In Raine Grp. LLC v. Reign Capital, LLC, the parties agreed to most of the components of the ESI Protocol, but they had two ESI Protocol disputes related to search obligations and terms that they couldn’t agree on. So, they raised those two issues with New York Magistrate Judge Katharine H. Parker for a ruling. That’s the way it’s supposed to work!
#2: Don’t “Box Yourself In” Regarding the Review Approach
I just covered this case earlier this week! In McCormick & Co. v. Ryder Integrated Logistics, Inc., Maryland District Judge James K. Bredar overruled McCormick’s objections to a magistrate judge’s ruling which determined that document review was required by the ESI Protocol, after McCormick was forced to gather additional ESI to replace that of a “key custodian” whose ESI was deleted when she left the company. McCormick was held to reviewing search results per the ESI Protocol despite their contention that doing so was not proportional to the case.
#3: Don’t Request What the ESI Protocol Doesn’t Permit
In the case In re Diisocyanates Antitrust Litig., the parties agreed upon the Stipulated ESI Protocol which required that they “discuss and attempt to reach an agreement on search methodologies”. When the plaintiffs filed a motion to compel the full production of calendar entries and the production of text messages without doing so, Pennsylvania District Judge W. Scott Hardy denied their motion.
#4: Honor the Form of Production Stated in the ESI Protocol
In Carl Zeiss Meditec, Inc. v. Topcon Med. Sys., Inc., the parties disputed a production where source files that are attachments to emails were separated in a production by the defendant. While the plaintiff didn’t get the cost shifting they wanted for redoing the production, California Magistrate Judge Laurel Beeler ordered the defendant to redo the production, stating: “Topcon was required, under the ESI Protocol, to produce all metadata, including family files.”
#5: To Avoid eDiscovery Issues, Get the Court to Adopt the ESI Protocol
In SinglePoint Direct Solar LLC v. Solar Integrated Roofing Corp., the parties agreed to ESI protocols which the Court did not adopt or reject. As Arizona District Judge James A. Teilborg stated: “If the Court were asked to rule on these protocols back in July 2022, the Court would have found that the parties’ protocols are unmanageable because they do not set a specific timeframe for objections…The parties’ poorly crafted protocols defeat Defendants’ argument that the objections are untimely.”
#6: Preserve Flexibility to Apply Technology Approaches to Discovery
In the case In re Allergan Biocell Textured Breast Implant Prods. Liab. Litig., Special Masters Joseph A. Dickson, U.S.M.J. (Ret.) and Brittany Manna denied the defendants’ proposed protocol for the use of technology-assisted review (“TAR”) of applying TAR after search terms, citing the ESI Protocol which required the parties to confer “on the application, if any, of search or other filtering technologies, including reasonable search terms, file types, date ranges, validation processes, predictive coding, Technology Assisted Review (‘TAR’), or other appropriate advanced technology”.
#7: Match Your Legal Hold Data Sources to Your ESI Protocol
In the Matter of In Re Skanska USA Civil Southeast Inc., et al., the parties agreed to an ESI Protocol that included the production of text messages. However, Skanska subsequently informed claimants and the Court that cell phone data had either been wiped clean, deleted, or lost for five custodians and text messages were lost for several other custodians as well. As a result, Florida Magistrate Judge Hope T. Cannon, calling this a “text book case of spoliation”, granted in part the claimants’ spoliation motion – an adverse inference and monetary sanctions, (which turned out to be over $92,000).
#8: Don’t Make Assumptions on ESI to Be Filtered Out of Production
In the case In re Actos End Payor Antitrust Litig., the Court approved the Discovery Protocol that the parties had proposed, which called for the production of ESI in native format, together with metadata and coding fields, and for the parties to de-duplicate the ESI that is produced, but it stated nothing about producing only the most-inclusive emails in email threads. When Takeda only produced the most-inclusive email in each thread and the plaintiffs objected, New York Magistrate Judge Stewart D. Aaron ordered Takeda to produce “all responsive ESI to Plaintiffs, including earlier-in-time emails”.
#9: Keep Your ESI Protocol Current for Newer Sources and Forms of Data
In Nichols, et al. v. Noom Inc., et al., the plaintiffs learned in early production that defendant employees frequently link to internal documents in lieu of attachments to emails or other documents and they urged the Court to require defendants to recollect Google Drive and Gmail documents so that any hyperlinked documents are also pulled as part of the document “family”. But New York Magistrate Judge Katherine H. Parker denied the plaintiffs’ motion, stating: “Notably, the ESI protocol negotiated by the parties and later entered by the Court does not state that hyperlinked documents are part of ‘family groups.’”
#10: To Minimize Disputes, Get an ESI Protocol
In Lundine v. Gates Corp., Kansas Magistrate Judge James P. O’Hara, stating: “Unfortunately, at least for plaintiff as it turns out, it seems that the parties evidently chose not to heed the undersigned’s suggestion about conferring further and then filing a more detailed ESI protocol after the scheduling conference”, denied the plaintiff’s motion to compel production of data in Excel or native format. And, in Boulder Falcon, LLC v. Brown, defendants’ counsel could have used an ESI Protocol after being confused by the plaintiff’s load file format production (and, assuming they received a “document dump”, which led to them being sanctioned for conducting the plaintiff’s president deposition in bad faith).
Hopefully, these ten ESI Protocol lessons will help you create better ESI Protocols! For those parties who need to learn how to create a better ESI Protocol (or create one at all), Craig Ball provides a terrific primer on how to do them! Check out his Annotated ESI Protocol here!
So, what do you think of these ten ESI Protocol lessons? Have you had any issues with your ESI Protocols? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
These look good but I feel compelled to correct the information about the Allergan case, which has been misreported elsewhere. The ESI Protocol in the Allergan case specifically contemplated the use of “predictive coding, Technology Assisted Review (“TAR”), or other advanced technologies…” but required the parties to confer and try to reach agreement on their application, or raise issues with the court if they could not agree. The parties did not agree on the application of TAR (including whether TAR could be used after search terms).
Good catch, thanks David! I updated the description of that case to reflect your correction.
Thank you for this excellent summary. I too have seen this trend which can be a trapped for those eager to work out everything in advance and before they really know their data sets.
[…] several other cases I could have included as well, but I decided to continue the “ten” theme of last week’s ESI Protocol post. So, here are ten BRUTAL sanctions case law rulings over the three year history of eDiscovery […]