Failure to Confer Regarding ESI Protocol Operates Against Failing Party

Cooperation and transparency are best practices.[1]  In Bonds v. NJ Judiciary Administration of the Court, 2024 WL 5220936 (D.N.J. Dec. 26, 2024), the court explained a prior discovery ruling:

The Court also found that Plaintiff’s failure, after nearly two years, to confer with Defense counsel regarding an ESI protocol militated against granting Plaintiff’s, the movants, request(s) to compel Defendant to respond and/or further respond to her expansive discovery requests. [emphasis added].

Bonds was before the court on a reconsideration motion, and much of the decision addresses that procedural posture and the unique requirements of, and high burden on, such a motion.  Id. at *1, passim.

The court wrote “that an ESI protocol, approximately two years after Plaintiff propounded her discovery requests and nearly one year after the January 18, 2023, discovery conference, was not in place at the time Plaintiff requested the Court to compel discovery and at the time the Court rendered its [first] May 8, 2024, ruling.”  See note 9 (emphasis added).

In its prior order, “the Court recited the long and tortured history of these discovery issues, highlighting that the same dated back to July 2022 and have been discussed at length with and by the parties and the Court through various letters, conferences, and letter orders.”  On the reconsideration point, suffice it to say: “The Court is unpersuaded by Plaintiff’s arguments and finds that reconsideration is not warranted.”  Id. at *5.

Plaintiff’s effort to “analyze the same facts and cases [that the court] had already considered” was rejected.  The Bonds court wrote that plaintiff’s “blunderbuss discovery requests” were improper.  It also addressed other procedural issues and refused to consider others.  See, e.g., note 2.

There appear to have been many shortcomings on Plaintiff’s side of the “v.”  For example, after a court conference: “In the ensuing months, the Court repeatedly instructed Counsel that Plaintiff was not permitted to serve interrogatories on non-parties in accordance with the Federal Rules of Civil Procedure.”  See note 4.

Nevertheless, it is interesting that a failure to meet, confer, and agree on an ESI Protocol was a factor that militated against granting Plaintiff’s discovery motion.[2]

In a different factual scenario, I have been appointed as an “ESI Discovery Supervisor” to assist parties in negotiating an ESI Protocol or discovery plan.  See Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024).

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[1] Failure to Cooperate Costs Clients Money (Mar. 8, 2022).

[2] Plaintiff was also suing the New Jersey Judiciary in a State court action. Bonds at *4.  She was a probation officer – – a court employee – –  who was challenging an employment decision.  Matter of Bonds, 2022 WL 2448295, at *1 (N.J. Super. Ct. App. Div. July 6, 2022).