Middle District of Florida Again Denies Joint Request to Enter an ESI Protocol as an Order

In a recent action in the Middle District of Florida, the parties’ submitted a Joint Motion for Stipulated Protective Order and a Joint Motion for Stipulated Order Regarding Discovery of Electronically Stored Information.  “The Motions respectively seek entry of a Stipulated Protective Order (‘Protective Order’), … and a Stipulated Order Re: Discovery of Electronically Stored Information (‘ESI Order’)….”

Both motions were denied without prejudice.  P2B Trading Co. Inc. v. Google, LLC, 2026 WL 2056075 (M.D. Fla. Jul. 16, 2026).

The court wrote that the motions did not contain the required memorandum of law and fail “to establish, by citation to legal authority or otherwise, that the Court’s entry of the proposed orders is necessary or appropriate, particularly in light of the parties’ agreement to the procedures set forth therein.”  It cited precedent that I wrote about in Court Denied Unopposed Motions for Protective Order and Approval of ESI Protocol (Sep. 5, 2024).

The court determined that: “Absent authority demonstrating that entry of the Protective Order or ESI Order by the Court, rather than private agreement amongst the parties, is proper, the Motions are due to be denied….  The Parties may at their option resolve and agree on an ESI protocol by private agreement without need for a Court Order.”  Id. at *1 (cleaned up; quotations, citations, etc., omitted).

The court left the door open, writing that “if a dispute arises regarding the stipulated agreements, the parties may, after appropriate conferral, seek enforcement through a properly supported motion and memorandum of law.” Id. It added:

The Court will deny the Motions without prejudice. If the parties continue to seek relief from the Court, stipulated or otherwise, they must file renewed motion(s) and memoranda of law in accordance with the instructions herein. Alternatively, as discussed, the parties are free to stipulate and enter into private agreements without order of the Court. Such agreements may be enforced between the parties, provided they are consistent with the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and this Court’s Local Rules, including this Court’s Local Rule on sealing. See Local Rule 1.11. To that end, the parties may reach their own agreement regarding the designation of materials as ‘confidential. There is no need for the Court to endorse the confidentiality agreement. The Court discourages unnecessary stipulated motions for a protective order.”

Id. at *2 (cleaned up).  Further, the court wrote:

The proposed Protective Order includes a provision briefly mentioning Federal Rule of Evidence 502 (“Rule 502”)…. However, the Motions do not mention Rule 502 or justify any corresponding relief. See Local Rule 3.01(b). 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 proposals. To be sure, Rule 502(d) orders are often entered on request.… But a Rule 502(d) order remains discretionary….

Id. at n. 1. Quoting precedent, it wrote: “The Motion lacks a sufficient factual predicate to persuade the court to exercise its discretion to issue a 502(d) order. Should the request be renewed, any factual allegations regarding whether such an order is warranted shall be supported by affidavit, affirmation, or otherwise verified.”  Id. (citation omitted).

In my prior post, Court Denied Unopposed Motions for Protective Order and Approval of ESI Protocol, I asked hypothetically: “I wonder what the result in Orlando Health would have been if the parties had submitted a proposed ‘discovery plan’ instead of a proposed ‘ESI Protocol.’”

This is not a mere semantic difference.  See Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024). The term “ESI Protocol” is not found in the Federal Rules of Civil Procedure; however, a “discovery plan” is both rules-based and mandatory.  “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).

After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan.”  A “discovery plan” includes all aspects of an ESI Protocol.  Id. Rule 26(f)(3) lists the mandatory contents of that “discovery plan.”

The 1993 Advisory Committee Notes state: “The report from the attorneys concerning their meeting and proposed discovery plan, as required by revised Rule 26(f), should be submitted to the court before the scheduling order is entered. Their proposals, particularly regarding matters on which they agree, should be of substantial value to the court in setting the timing and limitations on discovery and should reduce the time of the court needed to conduct a meaningful conference under Rule 16(b).”

The 2006 notes state: “Rule 26(f) is amended to add to the discovery plan the parties’ proposal for the court to enter a case-management or other order adopting such an agreement….  An order that includes the parties’ agreement may be helpful in avoiding delay and excessive cost in discovery.”

The 2015 Committee Note explains the expansion of the discovery plan rule. Rule 26(f)(3) states that a discovery plan must state whether the parties ask “the court to include their agreement in an order under Federal Rule of Evidence 502.”  In part, the Committee Note states: “Rule 26(f)(3) is amended in parallel with Rule 16(b)(3) to add two items to the discovery plan–issues about preserving electronically stored information and court orders under Evidence Rule 502.”