Parties Could Not Agree on an ESI Protocol; Neither Got What It Wanted

“[I]t is often a futile gesture to draw a line in the sand and cling to a position in a discovery dispute.”[1]  One court wrote  “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.” [2] The Hon. Andrew Peck (ret.) has light-heartedly often referred to “Rule 1.1” which is “don’t piss off the Judge.”

In Tudor v. State Farm Gen’l. Ins. Co., 2026 WL 3088020 (N.D. Cal. Oct. 15, 2026):  “The Parties were previously ordered to jointly finalize their proposed ESI Protocol so that production of any ESI sought could be completed.”  However, they were not able to jointly finalize an ESI Protocol.

Noting its broad discretion over discovery, the court wrote: “The Court’s discretion extends to crafting discovery orders that may expand, limit, or differ from the relief requested.” It wrote: “Because the parties are unable to come to an agreement regarding all terms contained within an ESI discovery agreement, the Court will, in its discretion, assist the parties in doing so.” Id. at *2 (citation omitted).  It added: “As part of our oversight responsibilities in discovery we have the discretion to modify ESI search term parameters.” Id. (citation omitted).  And, it explained that: “An ESI protocol must ‘be specific or it doesn’t mean anything.’” Id. (citation omitted).

It then stated: “The Court has reviewed the disputes between the Parties and their competing language proposed in the Joint Redline [which was based on the court’s Model ESI Protocol]. The Court previously cautioned the Parties against excessive or unnecessary deviations from the Model ESI Protocol. In light of the Court’s previous directive, the Court presumes the language in the Model ESI Protocol is appropriate and therefore adopts modifications to the Model only when there has been a showing of good cause. Accordingly, the ESI Protocol adopted (to be posted in a separate order following Plaintiff’s re-selection of the Water years) will reflect the Court’s decisions on the discrete disputes over the Protocol raised by the Parties which should be self-explanatory.”  Id. at *3 (emphasis added).

“The purpose of an ESI Protocol is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.”  The Purpose of an ESI Protocol – E-Discovery LLC (citation omitted); What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues – E-Discovery LLC.

The Northern District of California has a “Model Stipulated Order – E-Discovery for Standard Litigation.”  The 3-page model addresses: cooperation; appointment of an ESI Liaison; preservation; search (requiring a future meet and confer); production formats (without specification of metadata fields and a directive to cooperate); phasing; “Documents Protected From Discovery” (including a Fed.R.Evid. 502 order and a “quick peek” process); a partial categorical privilege log; and, a provision permitting future modification by stipulated order or for good cause shown.

The court ordered the parties to develop an ESI Protocol. An ESI Protocol differs from a Rule 26 “discovery plan.” There is no uniform definition of an ESI Protocol.  “ESI Protocol” v. “Discovery Plan”;  An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan”;  Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan”.

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[1] Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II, quoting Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958 (N.D. Ill. June 17, 2024).

[2] There’s No Right or Wrong Answer – But There Are Mistakes (Apr. 19, 2024), quoting Rayome v. ABT Electronics, 2024 WL 1435098 (N.D. Ill. Apr. 3, 2024).