ESI Protocol – Electronic Discovery Law

ESI Protocols: Courts Hold Parties to Account for Failing to Comply with the Protocols They Negotiated

May 19 2023

To resolve electronic discovery issues early in legal proceedings, parties often negotiate ESI protocols that define the required formats of production, outline the scope of record preservation required for the matter, and address key issues regarding privilege, confidentiality, and other key discovery considerations. But what happens when parties establish requirements in their ESI protocols that they later cannot fulfill? Three recent case opinions reflect how courts can react negatively to such situations.

Five Quick Tips for Drafting and Negotiating ESI Protocols

Jan 27 2023

By addressing how e-discovery issues will be handled in a particular case, ESI protocols can serve a valuable role in escalating such issues for early resolution and reducing later disputes on these topics. Below are five simple reminders for the next time you draft and negotiate an ESI protocol.

Cody v. City of St. Louis (E.D. Mo. 2021)

Jun 16 2021

Key Insight: After changing counsel, plaintiff sought an order compelling the defendant to reproduce prior ESI productions and to produce all future ESI productions in either native format or accompanied by metadata identifying the custodians, recipient, and date of the document. In denying plaintiff’s motion to compel, the court noted the parties “could and should have reached agreement on the format of ESI production in the nearly three years the case was pending” and plaintiff never requested a specific format previously, and also produced ESI to defendant in non-native format without metadata. Nothing in Rule 34(b) nor the Advisory Committee Notes indicates whether metadata must be produced to be considered reasonably usable. Thus, “absent a specific request to the contrary or special circumstances not at issue here, courts regularly find that searchable PDF documents constitute a reasonably usable form.”

Nature of Case: Civil Rights

Electronic Data Involved: PDF Documents

Case Summary

Oro BRC4, LLC v. Silvertree Apartments, Nos. 2:19-cv-4907, 2:19-cv-5087 (S.D. Ohio, June 10, 2021).

Key Insight: Plaintiff sought a motion for spoliation sanctions based on defendant’s failure to prepare its Rule 30(b)(6) deponent to testify on topics related to ESI preservation and collection, and for spoliation sanctions related to the failure to preserve ESI. The court granted sanctions for defendant’s failure to prepare its 30(b)(6) designee, finding: “The production of an unprepared witness is tantamount to a failure to appear, and warrants the imposition of sanctions.” Defendant offered its head of IT as the corporate designee. He received the deposition notice less than 72 hours before the deposition, spent about 6 hours preparing to testify (approximately 10 minutes per topic), did not review any documents other than his own emails, and did not speak or communicate with other employees to gather information on the topics he was supposed to testify about. The court ordered a second 30(b)(6) deposition, required defendant to pay the reasonable costs and expenses associated with attending the second deposition and fees for plaintiff’s ESI consultant to attend, and awarded fees associated with having to bring the motion to compel. On the issue of failure to preserve ESI evidence, the court concluded it was premature to address this issue until the second 30(b)(6) deposition, which would cover topics relating to defendant’s litigation hold efforts.

Nature of Case: Breach of contract

Electronic Data Involved: ESI business documents and electronic devices

Case Summary

Healthedge Software, Inc. v. Sharp Health Plan (D. Mass. 2021)

Key Insight:

Defendant filed a Motion to Compel Plaintiff to produce documents, including source code, and Plaintiff filed a Motion to Compel Defendant to disclose how it collected and searched its electronically stored information (ESI). The Court granted Plaintiff’s Motion while partially granting Defendant’s Motion.

A significant issue in both Motions was the respective parties’ collection of ESI. The Court noted that the parties failed “to engage in cooperative planning regarding ESI”, and directed the parties to confer regarding custodians and search terms of ESI collection and review. In partially granting Defendant’s Motion, the Court directed Plaintiff to further articulate its objections, but stated that some of Defendant’s discovery requests were premature even if Plaintiff was obligated to respond to them by the close of discovery.

Nature of Case: Breach of Contract

Electronic Data Involved: Electronic Documents, Source Code

Case Summary

In re Valsartan, Losartan, and Irbesartan Prods. Liab. Litig. (D.N.J. Dec. 2, 2020)

Dec 02 2020

Key Insight: Defendants violated the Court ordered ESI protocol when it unilaterally adopted a CAL platform without input from Plaintiffs. Defendants failed to timely disclose their intentions to use TAR and collaborate in good faith with Plaintiffs on the TAR platform to be used prior to implementation. Due to the cost and time required for a manual review, the Court permitted Defendants to do a TAR review of its non-responsive documents using the protocol previously negotiated but not finalized by the parties.

Nature of Case: Products Liability

Electronic Data Involved: Electronic Documents Generally

Case Summary

Carrington v Graden, (S.D.N.Y. 2020)

Sep 28 2020

Key Insight: Plaintiff was discovered to have fabricated emails. Court awarded over $500,000 in damages to Defendant.

Nature of Case: antitrust litigation

Electronic Data Involved: Emails

Keywords: sanctions,m fabricated evidence

View Case Opinion

Equal Employment Opportunity Commission v. M1 5100 Corporation (E.D. Fla. 2020)

Jul 02 2020

Key Insight: Counsel has a duty to oversee their clients’ collection of information and documents during the discovery process, especially when ESI is involved. Here, counsel failed to adequately supervise the ESI collection process. Counsel had no knowledge of the search efforts or process taken by Defendant is its discovery collection. Ultimately, the Defendant was given a final opportunity to produce responsive discovery. The parties were ordered to attempt to come to an agreement regarding and ESI protocol that included relevant data sources, custodians, and search terms.

Nature of Case: Employment Discrimination

Electronic Data Involved: Electronic Documents Generally

Case Summary

Javo Beverage Co. Inc. v. California Extraction Ventures, Inc. (S.D. Cal. 2020).

Apr 29 2020

Key Insight: The court granted defendant’s motion to compel production of filepath information, but allowed defendant to object to producing discrete filepath information if defendant can articulate a good faith basis for the objection, including irrelevance as to time or scope, or if the filepath data is misleading. If any filepath data is not readily accessible, the parties must confer and attempt to reach a cost-effective resolution prior to seeking the court’s involvement. The court also confirmed the parties’ mutual understanding that they are obligated to “preserve ephemeral, deleted, and other related kinds of data where counsel reasonably suspects such data is relevant” to the litigation.

Nature of Case: Trade secret misappropriation

Electronic Data Involved: ESI generally

Case Summary

In re Mercedes-Benz Emissions Litig. (District of NJ, 2020)

Jan 09 2020

Key Insight: dispute over search terms meant to identify documents

Nature of Case: environmental litigation

Electronic Data Involved: all discovery, search term protocol

Keywords: search term protocol, predictive coding, technology assisted review,

View Case Opinion

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