Court Ordered a Framework Where Parties Were Unable to Agree on an ESI Protocol

In Tudor v. State Farm General Ins. Co., 2026 WL 2668435 (N.D. Cal. Sep. 10, 2026), the parties were unable to agree on an ESI Protocol.  The court established a framework for resolving the dispute.  I suggest that, in doing so, the court provided a strong incentive for the parties to resolve their disputes.

The court entered the following order:

The Parties are ORDERED to continue to reasonably and promptly communicate and meet and confer to submit a Joint Proposed ESI Protocol by no later than September 23, 2026. See Litton v. Roblox Corp., 2026 WL 1483493, at *4 (N.D. Cal. May 27, 2026). To the extent the Parties have remaining disputes over the ESI Protocol, the Parties SHALL file by no later than September 23, 2026: (1) a Joint Redline of the Joint Proposed ESI Protocol (compiled jointly in a single document showing the Parties respective competing proposed language next to each other at each disputed location and comparing the proposed ESI Protocol against the Court’s Model ESI Protocol), (2) declarations from counsel explaining the substantive differences between the Proposed Joint ESI Protocol from the Model ESI Protocol, and (3) a Further Joint Discovery Letter Brief (complying with the Court’s Standing Discovery Order) which sets forth the Parties’ arguments on the issues remaining in dispute as to the specific competing disputed language (including why that Party’s proposed edits should be adopted and not the competing language from the other Party). Any additions the Parties do not agree upon SHALL be denoted in the Joint Redline with different assigned colors for the Court’s ease of reference; one Party’s edits shall all be in green, the other Party’s shall all be in red. To the extent any edits from either Party do not have competing language from the other Party, the Court will construe such edits as unopposed.

Id. at *4 (emphasis in original).

The court added:

• “As noted at the hearing, the Court cautions against excessive or unnecessary deviations from the Model ESI Protocol.”
• “The Court has broad authority and discretion to assist the Parties in resolving ESI disputes.”
• If “the parties are unable to come to an agreement regarding all terms contained within an ESI discovery agreement, the Court will, in its discretion, assist the parties in doing so.”
• “As part of our oversight responsibilities in discovery we have the discretion to modify ESI search term parameters.”

Id. (citations omitted).