ESI Protocol Held Not to Apply to Non-Party

Several discovery disputes arose out of a subpoena directed to a law firm, Goodwin. One dispute turned on redactions for non-responsiveness.

Goodwin produced two redacted email strings. Plaintiff opposed the redactions and argued that “Goodwin is not a ‘party’ and therefore cannot rely on the ESI Protocol to avoid the usual rules against redactions for non-responsiveness and, even under the ESI Protocol’s provisions, Goodwin’s redactions are improper.” Burge v. Teva Pharmaceuticals Industries, Ltd.,  2026 WL 2483260, at *6 (D. Kans. Aug. 25, 2026).

Goodwin relied on the ESI Protocol to support its redactions.

It argues the ESI Protocol does not limit the specifications governing document production just to the parties in the case, but rather “sets forth the specifications that govern document production during discovery in the above-captioned matter,” and permits a “Producing Party may redact the non-responsive portion(s) of the document provided that the redactions do not obscure the meaning of the responsive portions of the document.”

The ESI Protocol stated: “Non-responsive parent emails that are part of responsive families must be produced. However, parent emails may be redacted to the extent it contains non-responsive Information. The Producing Party may redact the non-responsive portion(s) of the document provided that the redactions do not obscure the meaning of the responsive portions of the document.”

The court disagreed with Goodwin:

Goodwin’s argument that it was permitted to do so under the ESI Protocol is not convincing. It argues in a contradictory fashion that the ESI Protocol’s provisions requiring negotiations regarding search terms do not apply to it, but the provisions permitting non-responsive redactions do apply to it. The ESI Protocol appears to only apply to the “parties” and therefore would not apply to non-party Goodwin. Even if the ESI Protocol applied to Goodwin, its provision allowing redaction for non-responsive information only permits redactions for “parent emails.” [emphasis in original].

The court ordered in camera review.

Relevance redactions have generated a lot of disputes:

• Relevance Redactions Rejected – Rule 26(f) Resolution
• Redaction Errors Re-Visited, Again and Again
• Relevance Redactions Prohibited – Again
• Relevance Redactions Revisited
• ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy
• 8 Lessons Learned – Part III – Redaction Provision of ESI Protocol