In Hall v. Warren, No. 21-CV-6296-FPG (W.D.N.Y. May 14, 2025), New York District Judge Frank P. Geraci Jr. overruled the City Defendants’ objections to the ESI order issued by Magistrate Judge Mark W. Pedersen affirming his order.

Case Discussion and Judge’s Ruling

In this instant putative class action concerning alleged excessive force and failure to address misconduct by the City of Rochester, Plaintiffs and the City Defendants tried to develop an ESI protocol they could both agree to, but they were unable to do so, prompting Plaintiffs to file a Motion to Compel the Production of Metadata and to Enter Plaintiffs’ ESI Protocol, which the City Defendants opposed. During a hearing on the motion with Magistrate Judge Mark W. Pedersen, he directed the parties to meet with their experts and develop a joint proposed ESI protocol.

If after conferring about the protocol, the parties were still unable to agree, Judge Pedersen directed them to submit proposed protocols to the court. He told them if they submitted proposed protocols, he would review the proposed protocols and pick and choose the items to put in the ESI protocol, which would become the ESI order for this action. They were unable to agree and did so, Judge Pedersen then issued the ESI Order based on the parties’ proposed orders. The City Defendants timely filed objections to the ESI Order arguing that the ESI Order must be vacated in its entirety as it suffered from several errors.

In his ruling, Judge Geraci overruled the City Defendants’ objections to the ESI order, one by one. Here are the highlights of his ruling:

Regarding the City Defendants argument that the ESI Order violates Local Rule of Civil Procedure 26(e)(4), Judge Geraci ruled, as follows:

• Good Cause: “As required by Local Rule 26(e)(4), Plaintiffs made a motion to the court to compel the production of metadata and to enter Plaintiffs’ ESI protocol, arguing that there is good cause to require the production of metadata in this case…Plaintiffs argue that workflow history and metadata from the use of force reports, civilian complaints, and internal investigation files are critical to their claims of excessive force and failure to supervise and discipline… Here, Plaintiffs have explained that the information they seek cannot be obtained from sources like the text of the requested documents because they seek to verify that the text of the documents accurately reflects what happened and accurately conveys if there were any revisions… As such, this Court believes that Plaintiffs have shown good cause to require the production of metadata”.
• Search Terms: “Even if the Court were to assume that the City Defendants are correct that Plaintiffs must establish a particularized need for metadata under Local Rule 26(e)(4)…The Court disagrees with the City Defendants that Plaintiffs must identify search terms or reasonable restrictions upon searches to demonstrate a particularized need.”
• Value/Burden: “the ESI Order suggests that Judge Pedersen did contemplate that there may be circumstances in which the burden of production would outweigh the value and provided a mechanism by which the City Defendants can seek an alternative form of production, if production is too burdensome.”
• Burden of Compliance: “Judge Pedersen’s decision to reject their argument does not mean that Judge Pedersen failed to consider their argument, especially in light of the language in the ESI Order providing that the parties will meet and confer to agree on a reasonable alternative if the protocol in the order creates an undue burden.”

Rejecting the argument that “the Court failed to consider the extraordinary cost to the City of compliance, yet ordered the City to bear those costs”, Judge Geraci stated: “The Court rejects this argument. As the City Defendants acknowledged, Local Rule 26(e)(6), allows the Court to ‘apportion the costs of discovery or presentation of ESI, including discovery of ESI that is not reasonably accessible, upon a showing of good cause, or unequal burdens, or unreasonable request.’ Thus, the language of Local Rule 26(e)(6) allows the court to apportion ESI discovery costs in limited circumstances, even absent an agreement between the parties.”

Judge Geraci also rejected the argument from the City Defendants that Judge Pedersen “failed to consider” that they do not have the technical ability to Bates stamp or redact items produced in native format to comply with the ESI Order, stating: “the ESI Order does not require Bates stamping of native files…As for redactions, while the ESI Order calls for redactions of native files, it also explains that if files produced in native format require ‘redaction, the Parties may discuss producing redacted versions in PDF format as an alternative.’”

Judge Geraci also rejected the argument from the City Defendants that Judge Pedersen erred by ordering that production be compatible with Plaintiffs’ ESI program, Relativity, stating: “The ESI Order only mentions Relativity once… Furthermore, the ESI Order is not inflexible… if compatibility with Relativity is an undue burden, then the ESI Order provides a mechanism by which the City Defendants can seek an alternative form of production.”

And, Judge Geraci also rejected City Defendants argument that Judge Pedersen failed to consider the financial and/or labor undue burdens resulting from compliance with production in native format on a global versus specific need basis, violating Local Rule 26(e)(5), stating: “the ESI Order does not call for global mandatory production in native format, as it specifically states that native production will be considered on a case-by-case basis. The ESI Order’s language also mirrors the language of Local Rule 26(e)(5) by requiring a particularized showing for native production after initial production.”

So, what do you think? Do you think any of the City Defendants’ objections to the ESI order had merit? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman for the heads up on this ruling!

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