Litigants Can’t Agree; Judge Entered an ESI Protocol;  Party Objected to It; Objections Overruled

In Hall v. Warren, 2025 WL 1392294 (W.D.N.Y. May 14, 2025), the parties attempted to develop an ESI Protocol.  When they were unable to do so, they submitted competing suggestions, and, the United States Magistrate Judge then “issued a Protocol and Order Governing Discovery (the ‘ESI Order’) establishing such a protocol.”

The “City Defendants” objected to the ESI Order.  The objection was overruled.

The lawsuit was a class action alleging excessive force as a matter of policy, practice, and custom.  Additionally, there were other class and individual claims.

The court wrote:

While Plaintiffs and the City Defendants tried to develop an ESI protocol they could both agree to, they were unable to do so, prompting Plaintiffs to file a Motion to Compel the Production of Metadata and to Enter Plaintiffs’ ESI Protocol…. The City Defendants opposed the motion…. On February 11, 2025, [United States Magistrate] Judge Pedersen held a hearing on the motion…. At the hearing, Judge Pedersen directed the parties to meet with their experts and develop a joint proposed ESI protocol…. However, if after conferring about the protocol, the parties were still unable to agree, Judge Pedersen directed them to submit proposed protocols to the court….  He told them if they submitted proposed protocols, he would review the proposed protocols and pick and choose the items to put in the ESI protocol, which would become the ESI order for this action.[Emphasis added].

When the parties were unable to agree, they submitted competing proposed ESI Protocols.  As noted, after the court ruled, the City Defendants objected to the Magistrate Judge’s decision.  The matter was now before the District Judge on a “clearly erroneous” standard of review.

The court wrote that the City Defendants objected to “the wholesale adoption of plaintiff’s [sic] proposed ESI Order without decision or explanation even though the protocol suffers from” several asserted errors.

Defendants argued that there was a violation of Local Rule 26(e)(4)’s requirements for discovery of metadata, the cost was not proportional, the court failed to consider the City’s “technical inability” to comply, “the court ordered production compliant with Plaintiffs’ ESI program, which is not required by the rules or case law nor owned by the City Defendants,” and “they argue that the court failed to consider the financial and/or labor undue burdens related to compliance with production in native format on a global versus specific need basis.”

The Hall court addressed each argument and overruled all of the City Defendants’ objections.

In Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024), the court wrote that “it would be in the parties’ interest to reach a negotiated result. It should not be forgotten that a party could be ‘right,’ but find itself on the losing side of a court’s ruling.” See There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024).

PRODUCTION OF METADATA WAS ORDERED

Local Rule 26(e)(4) provided that “[e]xcept as otherwise provided, metadata, especially substantive metadata, need not be routinely produced, except upon agreement of the requesting and producing litigants, or upon a showing of good cause in a motion filed by the requesting party.”

The City Defendants argued that “that the videos produced in discovery and the text of the documents produced in discovery will contain the information that Plaintiffs seek to gather from the metadata.”

Plaintiffs argued that “that workflow history and metadata from the use of force reports, civilian complaints, and internal investigation files are critical to their claims of excessive force and failure to supervise and discipline” and that metadata from videos would provide information “which may have been forgotten by witnesses.”

The court wrote:

Here, Plaintiffs have explained that the information they seek cannot be obtained from sources like the text of the requested documents because they seek to verify that the text of the documents accurately reflects what happened and accurately conveys if there were any revisions…. Further, they have explained that the metadata is relevant to their claims because they need to accurately reconstruct the excessive force events and any follow-up investigation or disciplinary process relating to those events to bring their claims for excessive force and failure to discipline.

This constituted good cause under the Local Rule to justify the production of metadata.

The City Defendants argued that the requested search was overly broad:  “They argue that absent search terms or other reasonable restrictions upon the searches, Plaintiffs cannot demonstrate a particularized need” for the requested information.

The Court disagrees with the City Defendants that Plaintiffs must identify search terms or reasonable restrictions upon searches to demonstrate a particularized need . Again, Plaintiffs have explained that they seek to verify that the text of the requested documents accurately reflects what happen and accurately conveys if there were any revisions.…  Further, they have explained that they need the metadata to accurately reconstruct the excessive force events and any follow-up investigation or disciplinary process relating to those events…. Thus, the Court believes that Plaintiffs have identified a particularized need for the metadata at issue absent the identification of search terms and/or other parameters. [Emphasis added].

The court rejected two other defense arguments against production of metadata.

As an aside, in my view, the Local Rule represents an outdated view of metadata.  In addition to the uses set out in the Hall decision, metadata may be used to authenticate evidence at trial and to populate fields in a litigation review database.  Fed.R.Civ.P. 34 permits a requesting party to specify the form or forms of production.  The producing party must comply or object and state how it “intends” to produce the ESI.  If there is disagreement, the parties may then meet and confer.

COST OF COMPLIANCE

The City Defendants argued that the Magistrate Judge “failed to consider the extraordinary cost to the City of compliance, yet ordered the City to bear those costs.”

Those arguments were also rejected.  The Local Rule permitted the court to apportion costs of discovery of ESI.

Further, contrary to the City Defendants’ contention that the costs have been foisted on them, the ESI Order only states that “[g]iven the significant resource disparity between Plaintiffs and the Defendants, the Parties agree that Defendants will bear the costs of producing ESI from larger, more complex systems (e.g., IAPro, LERMS, body-worn camera footage) if Plaintiffs can demonstrate that such production would otherwise be unduly burdensome.” …. Therefore, the costs of ESI discovery are not being foisted on the City Defendants, the order simply allows Plaintiffs to seek apportionment if they can demonstrate such production would be unduly burdensome.

Additionally, there was no evidence that the Magistrate Judge “failed to consider” the “extraordinary cost.”

While not cited because there was no request for a protective order, the same result could be reached on a Fed.R.Civ.P. 26(c)(1)(B) motion for protective order. A protective order may specify “the allocation of expenses, for the disclosure or discovery….”

THE CITY DEFENDANT’S TECHNICAL INABILITY

The City’s technical inability argument was:

Specifically, the City Defendants claim that they do not have the technical ability to Bates stamp or redact items produced in native format…. They do have the capability of Bates stamping and redacting PDF produced documents.

The court rejected the assertion that the Magistrate Judge “failed to consider” this argument.  On the merits, the court wrote that:

[T]he ESI Order does not require Bates stamping of native files…. As for redactions, while the ESI Order calls for redactions of native files, it also explains that if files produced in native format require “redaction, the Parties may discuss producing redacted versions in PDF format as an alternative.” … Thus, the City Defendants technical inability to Bates stamp or redact items produced in native format does not make them unable to comply with the ESI Order. However, even if it did, the ESI Order is not inflexible and allows the parties to discuss alternatives if a form of production is unduly burdensome…. Consequently, the Court concludes there is no merit to this argument.

I note in passing that many litigation review platforms, such as CS DISCO, permit redaction of metadata in native documents.

And, Craig Ball posted C’mon! Bates Numbering Native Production is Easy! | Ball in your Court (Nov. 22, 2020); S. Nelson, Yes, You Can Bates Number Native Productions! | Sensei Enterprises, Inc. (Jun. 17, 2019).

“Next, the City Defendants argue that Judge Pedersen erred by ordering that production be compatible with Plaintiffs’ ESI program, Relativity.”  The court noted that Relativity was mentioned only once:

[The ESI order] states that for documents from hard copy sources, the parties “will provide a standardized load file compatible with Relativity and with a Bates number field included in the load file to match text and metadata with PDF or TIFF images.”

The court did not consider this to be clearly erroneous and noted that it was not inflexible under the order.  “Thus, if compatibility with Relativity is an undue burden, then the ESI Order provides a mechanism by which the City Defendants can seek an alternative form of production.”

I suggest that a load file “compatible with” Relativity can be exported by most litigation review platforms.  For more on load files, see How to Read a Load File (Dec. 16, 2023).

NATIVE PRODUCTION

“Finally, the City Defendants argue that Judge Pedersen failed to consider the financial and/or labor undue burdens resulting from compliance with production in native format on a global versus specific need basis.”

The court found no evidence supporting the “failed to consider” argument or that there was a global requirement.  It wrote that: “The ESI Order states that ‘[a]fter initial production in image file format is complete, a Party must demonstrate particularized need for production of ESI in its native format.’”

The order provided that ESI that does not convert well to PDF or TIFF, such as spreadsheets and presentations, should be natively produced “if there is a particularized need,” as defined in the order.

The ESI Order stated: “Native production will be determined on a case-by-case basis.”

In a footnote, the court wrote:

As for the [alleged] failure [of the Magistrate Judge] to include aspects agreed-to by Plaintiffs’ counsel, the City Defendants do not identify these aspects. Absent such identification, the Court cannot conclude that Judge Pedersen’s failure to incorporate them was clearly erroneous or contrary to law.

“For the foregoing reasons, the City Defendants’ objections are OVERRULED, and Judge Pedersen’s ESI Order … is AFFIRMED.”

Craig Ball, Esq., has written The Case for Native, I Swear | Ball in your Court (Oct. 3, 2020).  In that blog, he explains in detail the advantages of native productions.  In doing so, Craig “lays out 50 points….” D. Austin, Craig Ball Swears By Native Format Production. Literally.: eDiscovery Best Practices – eDiscovery Today by Doug Austin (Oct. 5, 2020).

“When employed by competent counsel using proper tools, native productions are almost always cheaper and faster than imaged productions….” C. Ball, “The Case for Native Production,” (Practical Law Oct./Nov. 2014).