“Order on Proposed ESI Order” – Is There a Better Mousetrap?

In Deckers Outdoor Corp. v. Last Brand, Inc., 2024 WL 4245407 (N.D. Cal. Sept. 18, 2024), the parties disagreed over when a formal ESI agreement was needed.

However, the court held that “entry of some form of ESI order” was appropriate. It directed the parties to meet and confer.

They did and: “The parties filed what they claimed was a stipulated proposed ESI order….”  In that proposal, the parties “sought to incorporate the Joint Case Management Statement & Order…”

That was apparently insufficient and, thereafter, the court “directed the parties to file an amended ESI Order” clarifying the categories of ESI that they intended to search.

The parties then filed an amended proposal “which revealed that the parties did not in fact agree about which categories of information needed to be preserved, searched, and produced.”

The court then issued a new order and also “direct[ed] the parties to meet and confer in good faith and file an amended proposed ESI Order consistent with this Order.”

The dispute concerned emails, instant messaging, and chat application data. Id. at *2.  Quince contended the parties had agreed that this ESI need not be preserved, searched, or collected.  However, Deckers disagreed, and argued “that the agreement contemplated that the parties would not preserve, search, or collect emails that are duplicative of information that resides in another reasonably accessible data source.”  Id.

The court wrote: “The Court does not agree with either Quince’s or Deckers’ interpretation of the Joint Case Management Order….  The Court orders Quince to review, collect, and produce responsive emails and Slack messages. The parties shall meet and confer and finalize a proposed ESI protocol, consistent with the findings in this Order, to be filed no later than September 20, 2024.”

In Deckers, there was:

• A joint statement regarding Deckers’ motion to compel;
• Disagreement over the need for a “formal ESI agreement”;
• An order directing “entry of some form of ESI order” with a directive to meet and confer;
• A “claimed” stipulated proposed ESI order that incorporated a Joint Case Management Statement;
• An order directing filing of a clarifying ESI Order;
• Filing of an amended proposed ESI order which “revealed” the dispute;
• This “order on proposed ESI order”; and,
• An order to “meet and confer and finalize a proposed ESI protocol, consistent with the findings in this Order….”

The court also wrote: “Quince’s September 5, 2024 letter violates the Court’s procedures for resolving discovery disputes, which requires the filing of joint discovery letters. The Court, however, considers this letter given that Deckers filed an improper affidavit earlier the same day, stating its position.”

Of course, courts have ordered parties to confer and develop an ESI Protocol or “discovery plan,” and there is nothing wrong with that approach.  Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024)(specific order detailing what must be discussed); “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).

Where there are unsuccessful efforts to agree to a discovery plan, however, there may be a better mousetrap.

One alternative approach may be court-ordered mediation.  Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024).

In a different approach, courts have ordered that conferences be recorded and have reviewed the discussions to resolve disputes.  Felder: Part 1 of 4:  Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024).

Another approach may be the fact or possibility of a judicially-imposed resolution.  One court wrote: “ But enough is enough. Disobeying a district court’s discovery order is conduct that must be stopped.”  “I hate, hate, hate motions for sanctions.” (May 9, 2023).

Sometimes, it may “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)(citation omitted). To the same effect, it “may behoove” parties to “reach an accord” between themselves, “because courts have great discretion to resolve discovery disputes.”  See What Happens When Parties Fail to Negotiate a Privilege Log in Good Faith? (Apr. 8, 2024)(citation omitted).

Court Resolves Disputes Over Number of Custodians and Validation Protocol (Aug. 6, 2024); Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun 20, 2024)(“it’s very often a futile gesture to draw a line in the sand and cling to a position in a discovery dispute.”).

Parties may recognize that a judicially-imposed solution may be “less than perfect….”  William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 n. 2 (S.D.N.Y. 2009).  “Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.”  Id. at 136.

The possibility of an imposed solution might be preferable to repeated orders to meet, confer, and cooperate.