Is a Court-Ordered ESI Protocol a Trap?

In Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024), the court wrote:

So, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like it will be difficult or impossible for you to comply with the order, then you should move to modify the order with reasonable diligence, explaining why the order has become difficult or impossible for you to comply with. You might win your motion, or you might lose, depending on how good your argument is. But that’s what you’re supposed to do if you find yourself in that situation. What you’re not supposed to do is pretend like the order doesn’t exist, or pretend that your violations are somehow a form of compliance, and then hope your opponent doesn’t point out what you’re doing.

The court quoted the parties’ stipulation regarding privilege logs and added: “As Plaintiff points out in her motion to compel, Meta’s privilege log does not comply with paragraph 1 of appendix 2 of the ESI Order.”  The court wrote:

Meta has a lot to say about how compliance with paragraph 1 of appendix 2 is difficult or impossible. Meta says that it is difficult for it to identify all of the individual authors and suggests it may not be possible for it to identify all of the recipients. You know where those arguments belong? In a motion to modify the ESI Order. It says on its face that it can be modified “for good cause shown.” ESI Order ¶ 10. Since no one has asked the Court to modify the ESI Order, the Court expresses no view on whether there is good cause to do so. It is sufficient to resolve the current discovery dispute to observe that Meta’s privilege log does not satisfy paragraph 1 of appendix 2 of the ESI Order, and Meta has not filed a motion asking for relief from those requirements. Accordingly, Plaintiff’s motion to compel is GRANTED, and the Court ORDERS Meta to bring its privilege log into compliance with paragraph 1 of appendix 2 of the ESI Order. This order is without prejudice to a motion to modify the ESI Order. [emphasis added].

ESI Protocols are generally enforceable agreements.  Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced – EDRM

However, they are generally modifiable.  StubHub: Modification of ESI Protocol and Denial of Sanctions – Performance Was Impossible – EDRM; The ESI Protocol: Your Word is Your Bond… Or, Is It?  – EDRM

Cook sets out the best practice when a litigant contends that performance is impossible or not proportionate to the needs of the case.

UPDATE:  In case discussed in EDRM’s “Important eDiscovery Case Law Decisions for July 2024, the court reached a similar conclusion: “Defendants ignored the timeline that was clearly set forth in the Court’s Discovery Order and, according to Plaintiff’s Reply, still have failed to satisfy their discovery obligations. To be clear, the untimeliness was a choice by Defendants. They did not seek an extension of the time to comply with the Discovery Order, which the Court likely would have freely given. Instead, they now seek a finding of good cause and excusable neglect under Rule 6(b). In other words, as the old adage goes, Defendants choose to seek forgiveness rather than permission. This was a miscalculation. The Court cannot ignore that Defendants’ dithering has now resulted in both a stall of discovery and disobedience, at some level that may still need to be determined, of the Court’s Discovery Order.”  Heath v. Vill. of Cent. City, Illinois,  2024 WL 3012370, at *3 (S.D. Ill. June 14, 2024)(emphasis added).

This blog was initially posted on  Electronic Discovery Reference Model.