In Husidic v. FR8 Sols., Inc., No. 3:24-cv-963-WGY-SJH (M.D. Fla. Sept. 10, 2025), Florida Magistrate Judge Samuel J. Horovitz denied without prejudice the parties’ joint motion for entry of an Order adopting the parties’ ESI Stipulation, which also included provisions for relief for inadvertent production of privileged ESI without specifically mentioning FRE Rule 502.

Case Discussion and Judge’s Ruling

In this case, the parties sought entry of an Order adopting the parties’ Stipulation Regarding Production of Electronically Stored Information and Paper Documents (“ESI Stipulation”), which was attached to the Joint Order.

In considering the motion, Judge Horovitz stated: “Upon review, the Motion—which contains only a passing reference to Fed. R. Civ. P. 26(c) and does not contain a memorandum of law as required by Local Rule 3.01(a)—fails ‘to establish, by citation to legal authority or otherwise, that the Court’s entry of [an order adopting the ESI Stipulation] is necessary or appropriate, particularly in light of the parties’ agreement to the procedures set forth therein.’…Absent authority ‘demonstrating that entry of the [ESI Stipulation] by the Court, rather than private agreement amongst the parties, is proper, the’ Motion is due to be denied…Otherwise, if a dispute arises regarding ESI protocols or agreements, then, after appropriate conferral, enforcement may be sought with a properly supported motion and memorandum of law.”

Continuing, he said: “Accordingly, the Motion (Doc. 93) is denied without prejudice. The proposed order attached to the Motion (Doc. 93-2) is stricken.”

Judge Horowitz also included two footnotes in his order. The first said: “Even if the parties were to file a properly supported motion showing it appropriate to enter an Order adopting an agreed ESI protocol at this time, they must ensure that their proposal is clear and internally consistent.”

The second footnote said: “Though unclear, the undersigned notes that the ESI Stipulation includes provisions arguably implicating Federal Rule of Evidence 502 (‘Rule 502’)…However, the Motion does not mention Rule 502 (nor does the ESI Stipulation) and is insufficient to justify any corresponding relief…Moreover, the ESI Stipulation appears to be unclear and ambiguous…If the parties intend to seek a non-waiver order pursuant to Rule 502(d), they must expressly so state in any renewed motion, must better explain and properly support the basis for any such request, and must make any necessary edits to their stipulated proposal. To be sure, Rule 502(d) orders are often entered on request…But a Rule 502(d) order remains discretionary…The parties should also consider that, even if authorized, the protection of Rule 502(d) is limited to material covered by the attorney-client privilege or work-product privilege and will not be expanded beyond that narrow scope.”

So, what do you think? Are you surprised that the lawyers filed a joint motion that was rejected because it was unclear and failed to follow local rules? Please share any comments you might have or if you’d like to know more about a particular topic.

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