Motion to Compel ESI Protocol Denied

A motion to compel an ESI Protocol was denied in Khan v. Port Washington Hospitality LLC, 2025 WL 2664020 (E.D.N.Y. Sep. 17, 2025).

Khan is a collective action case under the FLSA. The court denied conditional certification but permitted related discovery. Defendant PWH operated restaurants. Plaintiff, Ms. Khan, alleged that they were a single entity and asserted a variety of wage claims.

The court wrote:

Plaintiff objected to Defendants’ refusal to agree to an ESI protocol. Khan asserts that “PWH objected and refused to provide any ESI at all.” …. In response, PWH states that it “has conducted a thorough review of its systems and devices” and has “produced over a hundred responsive documents.” … PWH further represents that it will supplement its production “should additional responsive documents become known,” but denies that it is “under an obligation to enter into an ESI search protocol.”

The court agreed that there is no obligation to enter into an “ESI search protocol,” because:

Even following submission of its motion, Plaintiff has not identified any discovery demands to which Defendants have failed to provide an adequate response. Considering Defendant’s discovery obligations arising under Fed. R. Civ. P. 26, as well as PWH’s representation that it has produced, and will continue to produce as necessary, responsive documents, the motion is denied without prejudice and with leave to renew in the event there are legitimate bases to question the adequacy of Defendants’ document production. Any such disputes may be raised, and will be addressed, at the October 21, 2025 status conference.

Id. at *5 (emphasis added).

I have suggested that, in such circumstances, a party seeking agreement may request a “discovery plan” instead of an “ESI Protocol,” although on these facts it may not have made a difference.  See generally “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).