Didn’t see the latest post from Craig Ball until last Friday, where he discussed ESI protocols and getting out of a bad deal. His advice transcends ESI protocols.

In his latest post on his excellent Ball in your Court blog (ESI Protocols: How Do I Get Out of a Bad Deal?, available here), Craig states that he “watched a webinar this morning where the presenters addressed ESI Protocols.  They were well-informed people sharing sound advice; but it underscored for me why people despise lawyers. A presenter counseled, ‘Always build an escape clause into whatever you agree to.’”

In other words, as Craig noted: “The speaker meant, if you commit your clients to a protocol provision, and you later find that the client or its service provider can’t or won’t do what was promised, you need to incorporate a ‘fingers crossed’ way to back out of the deal.”

Craig observes what I’ve been observing too: “the risk of being bound by obligations that could prove more onerous or expensive than anticipated is the number one objection I hear voiced when I advocate for use of ESI Protocols”.

I’ve heard several experts in our industry – including current and former judges – discuss the pros and cons of ESI protocols and how ESI protocol agreements entered into court orders can then be used against a party who fails to comply with FRCP Rule 37(b). It’s enough to make anyone reticent to ever enter into an ESI protocol at all.

So, when it comes to ESI protocols and getting out of a bad deal, what advice does Craig have? It’s simple – don’t get into one in the first place. As Craig states:

“The law has a term for what accounts for the difference between a fair deal and a debacle: it’s due diligence.  Competent counsel should know the capabilities of both clients and vendors before agreeing to an obligation that hinges on the capabilities of our clients and vendors.”

Craig cites the McCormick & Co. v. Ryder Integrated Logistics, Inc. case I covered last year where the plaintiff was required by the court to conduct manual review of the documents per the ESI protocol. But I like the In re StubHub Refund Litig. case from last year (which has gotten a lot of discussion over the “modern attachments” debate) where California Magistrate Judge Thomas S. Hixson makes it clear what parties should do regarding ESI protocols when he says:

“Let’s get back to basics: Litigants should figure out what they are able to do before they enter into an agreement to do something. Litigants should live up to their agreements, especially when they are embodied in court orders, as the ESI Protocol is here.”

That’s aligned with Craig’s statement about due diligence above. However, Judge Hixson also stated this:

“And if for some reason, a party learns that a so-ordered discovery agreement has become impossible to comply with, the party should promptly move for relief, with a good showing that despite its best efforts, compliance is impossible.”

Which Craig is also aligned with when he says this: “If you made an honest mistake in agreeing to a provision of an ESI protocol, the optimum path is to own it and seek to make it right.”

That’s not just great advice for ESI protocols – it’s great advice for pretty much anything. We all make mistakes. How we handle those mistakes – owning them instead of looking for someone to blame – is a testament to our character. The cover-up is always worse than the crime.

When it comes to ESI protocols and getting out of a bad deal, the best advice is do everything you can to not get into a bad deal in the first place. If you do make a mistake, own it and work with the parties and the Court to address it.

By the way, Craig is one of the Co-Project Trustees on the ESI Protocol project for EDRM. I’m excited to see what comes out of that project!

Check out Craig’s post here and find out who – besides lawyers – are “the last bastion of characters cast as vile stereotypes in the movies without outcry.” According to Craig, that is. 😉

So, what do you think? Do you think ESI protocols are a good thing or a bad thing? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using Bing Image Creator Powered by DALL-E, using the term “robot lawyer tearing up a contract”.

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