Court Appointed ESI Discovery Supervisor for ESI Protocol

“Cooperation” has long been a hallmark of resolution of ESI issues.  See, e.g., Historical ESI Highlights – Part VIII – Cooperation and The Cooperation Proclamation (May 31, 2022).

It was an honor to be appointed by the U. S. District Court for the District of Maryland as the “ESI Discovery Supervisor” in a complex commercial case, with the task of “oversee[ing] the negotiation of an ESI protocol.”

With the consent of two sophisticated and cooperative groups of litigants, I conducted the process much like a mediation, beginning with ex parte communications with both sides.

This resulted first in a partial agreement resolving some initial impasse issues.  For example, the parties exchanged lists of custodians to identify “key players,” agreed on certain search methodologies, and made certain disclosures.

Then, the process led to the filing of a “Stipulated ESI Protocol and Discovery Plan.”  The differences between an ESI Protocol and a “discovery plan” were discussed in “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).

The final document was negotiated, in the beginning, through ex parte discussions.  Later, it was negotiated in joint virtual sessions and edited in real time, using screen sharing.  Participants included counsel and their technical experts.  All discussions were designated as confidential settlement discussions.

My final report to the Court stated: “I am pleased to report that both parties participated in a cooperative, transparent, and professional manner, resulting in  substantial progress.”

The report stated:

It is not unexpected that, despite cooperative efforts, differences remain.  As this Court has noted: “It also is apparent that there is nothing at all about the cooperation needed to evaluate the discovery outlined above that requires the parties to abandon meritorious arguments they may have, or even to commit to resolving all disagreements on their own.” Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 365 (D. Md. 2008)(emphasis added).

The role of cooperation is to “substantially minimize[]” disputes.  Id. at 356.  “Cooperation is not capitulation.”   M. Berman and The Hon. Paul W. Grimm, “The Duty to Cooperate in Discovery” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 340 (citation omitted).  “

As properly defined, ‘cooperation’ requires focused discovery requests, specific discovery objections, negotiation, discussion, flexibility, transparency, and often an iterative process. It does not require that a litigant forego any meritorious discovery or other position.”  Id. at 338-39 (emphasis added).

The report then summarized those issues for the Court and recommended entry of an order approving the ESI Protocol and Discovery Plan.

I have long favored Mediation of ESI Disputes; JAMS: “Mediating E-Discovery Can Save Time and Money”.  Here, it was successful, thanks in large part to two parties that were sophisticated, cooperative, and willing to engage in a “give and take” negotiation.