ESI Protocol Permitting Party to “Request” Additional Custodians Did Not Prohibit Opponent From Moving for Protective Order Opposing the Request

Andersen v. Stability AI Ltd., 2025 WL 3564202 (N.D. Cal. Dec. 12, 2025), involved interpretation of an ESI Protocol. The protocol was called a “Stipulated ESI Order.” It stated:

• “A Requesting Party may request up to twelve custodians per Producing Party….”
• “The parties may jointly agree to modify these limits without the Court’s leave. The Parties may request inclusion of additional custodians as discovery progresses. The Court shall consider contested requests for additional custodians, based upon a showing of proportionality to the needs of the case as that Phrase is used in Rule 26 of the Federal Rules of Civil Procedure.”

A dispute followed.  Plaintiffs “contend that under the Stipulated ESI Order, they are entitled as a matter of right to twelve custodians, with proportionality requirements applying only with respect to additional custodians sought beyond the twelfth custodian.”

Defendants disagreed and the court wrote: “Notably, the Stipulated ESI Order does not expressly preclude a party from seeking a protective order pursuant to Rule 26 of the Federal Rules of Civil Procedure regarding custodian designation.” [emphasis added].

The court discussed the role of an ESI Protocol or Stipulated ESI Order, the court wrote:

Courts encourage parties to plan their discovery and adopt ESI protocols to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.… Courts encourage parties to work out things like ESI protocols and other procedures governing discovery, recognizing that without them, courts would have to rule on everything, and litigation would be even more expensive than it already is…. The emphasis placed on ESI protocols and party agreements to manage and streamline discovery helps advance “the just, speedy, and inexpensive determination” of civil actions pending in federal courts. Fed. R. Civ. P. 1. [cleaned up; quotations and citations omitted].

The Andersen court wrote that, considering the Federal Rules of Civil Procedure, the intended purpose of ESI orders, prior disputes in this multi-defendant case, and prior orders, “the undersigned holds that Plaintiffs’ selections of up to twelve custodians are not immune from challenge and a responding defendant may seek a protective order under the standard set forth in Rule 26 of the Federal Rules of Civil Procedure.”  [emphasis added].  The court held that good cause must be shown to enter a protective order.[1]

The court explained why the party opposing the request had the burden of proof:

The Stipulated ESI Order, however, would not advance efficiency if Defendants were allowed to easily sidestep their general obligation to produce document discovery for up to twelve designated custodians by requiring Plaintiffs to seek an order to compel and demonstrate that the custodian will have relevant information that is proportionate to the needs of the case.

The court explained that this analysis strikes an appropriate balance by requiring “an objecting defendant to seek a protective order by demonstrating that Plaintiffs are abusing the designation process.”

On the facts presented, defendant did not make a sufficient showing:  “The idea that responsive documents will necessarily be found in other custodians’ records is not sufficient to defeat a search of his files….. Rather, it is possible that one custodian will have a document or document that other custodians have not retained or do not possess, particularly where custodians are on different rungs of the corporate ladder.”  [cleaned up; quotations and citations omitted].

For additional information on ESI Protocols, please see:

• What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues (Nov. 29, 2025);
• An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025);
• No Milestone Was Established in the ESI Protocol = No Milestone Existed (Nov. 14, 2025);
• Litigants Can’t Agree; Judge Entered an ESI Protocol;  Party Objected to It; Objections Overruled (May 17, 2025);
• An ESI Protocol Saved the Day for the Discovering Party (Apr. 15, 2025);
• Is a Court-Ordered ESI Protocol a Trap? (Sep. 14, 2024);
• StubHub: Modification of ESI Protocol and Denial of Sanctions – Performance Was Impossible (May 23, 2024);
• The ESI Protocol: Your Word is Your Bond… Or, Is It? (Jan. 11, 2024).

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[1] The protective order rule, Fed.R.Civ.P. 26(c), provides in part: “The court may, for good cause, issue an order to protect a party….”