Both Parties Misunderstood the ESI Protocol Regarding Production From Personal Email Accounts

Often, people write what they mean and mean what they write. However, in Flybar, Inc. v. Express Trade Capital, Inc., 2026 WL 3231635 (S.D.N.Y. Oct. 28, 2026), “the Court disagrees with both parties’ reading of the ESI Protocol.” The court set out the differing positions:

• “Defendants contend that the ESI Protocol in this case expressly contemplates the collection of personal emails and requires Plaintiff to comply with Request No. 1.”
• “Plaintiff disputes this interpretation and construes the Protocol as foreclosing the possibility of searching the custodians’ personal email accounts.”

The court wrote: “There is no language in the Protocol either requiring the production of ESI from personal email accounts or relieving any party from producing such material.”

Holding that “the ESI Protocol does not answer the question,” the court looked to “the applicable legal standard: whether there is sufficient reason to believe that the personal email account was used for work purposes so as to justify a search for responsive ESI.”

On the facts presented: “While the issue is a close one, the Court finds that Defendants have provided adequate justification for their request.”

This blog was initially posted on  Electronic Discovery Reference Model.

UPDATE: See generally:

• Former CEO Had No Reasonable Expectation of Privacy in Company’s Electronic Devices – E-Discovery LLC (Oct. 5, 2026);
• Use of Personal Email by Government Personnel – E-Discovery LLC (Aug. 31, 2026);
• Use of Personal Email by Government Personnel – E-Discovery LLC (Aug. 26, 2026);
• Condominium Construction Defect Litigation Leads to Search and Custodian Rulings – E-Discovery LLC (Jul. 30, 2026);
• Your Policy, Your Problem: Company Policies Often Define the Limits of Employee Privacy – E-Discovery LLC (Dec. 20, 2025);
• Town Sanctioned for Prejudicial Breaches of Duty to Preserve in Alleged Sexual Assault Case; Court Also Addresses Use of Personal Email by Council Members – E-Discovery LLC (Nov. 29, 2024);
• Employer Erred by Downloading Former Employee’s Personal Email; But, Failure to Preserve it Was Not Spoliation; and, There Was a Gap in Employee Handbook Clause Permitting Employer Access Post-Termination – E-Discovery LLC (Oct. 6, 2024);
• Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work – E-Discovery LLC (May 20, 2024).

For a decision holding the factual predicate was insufficient, see Does a Subject-Matter Waiver “Snowball” Into a Wholesale Waiver of Privilege Under a “Newfangled Theory”? – E-Discovery LLC  (Nov. 7, 2025).

On a related issue, In an Asset Sale, Don’t Sell the Server That Holds Privileged Communications – E-Discovery LLC (Oct. 21, 2025).