Should an ESI Protocol Be Incorporated Into a Court Order?

There is a lot of debate over whether an ESI Protocol should be incorporated into a court order; however, the decision may be unimportant as a practical matter.

In McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc., 2023 WL 2433902 (D. Md. March 9, 2023), the parties did not incorporate their Protocol into an order.  When a dispute over the meaning of the Protocol arose,[1] McCormick moved to have the Protocol entered as an order.  That motion was granted.

ESI Protocols should not be locked in concrete. See Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II).

“While courts should not casually discard agreements between the parties, nor should they abrogate their duty to balance both burden and the likelihood of uncovering relevant evidence merely because a party made an improvident agreement.”

Sanctions Denied, But Be Careful What You Agree To (Part I), quoting I-Med Pharma, Inc. v. Biomatrix, Inc., 2011 WL 6140658 (D.N.J. Dec. 9, 2011)(unpublished).  In short, an ESI Protocol is merely an interlocutory discovery order and modification remains in the discretion of the court.

There is a simple drafting solution that will avoid problems.  See Epic Games, Inc. v. Google, Inc., No. 3:20-cv-05671 (N.D. Ca. Nov. 2020):

This Stipulated order may be modified by a Stipulated Order of the parties or by the Court for good cause shown…. [emphasis added].

In fact, I often suggest modification for “cause shown.”

I agree with Craig Ball’s excellent analysis in The Annotated ESI Protocol | Ball in your Court (craigball.net)(Jan. 9, 2023):

My view is, if I agree to something, I’m content to put in writing; and if I’m willing to agree to it in writing, I’m content for it to be memorialized in an order. But there’s a school of thought that  lawyers should afford their clients ample wiggle room in agreements, and court-ordered protocols make it difficult to adapt to the unforeseen and change direction when discovery becomes riskier, more disruptive or more costly than expected. Whether a court-ordered protocol is a guardrail or a tripwire depends upon whose ox is gored.

In the final analysis, judges guard their authority more jealousy than litigants’ rights; accordingly, courts tend to enforce their orders more rigorously than party agreements. If you want an ESI Protocol with teeth, get it entered as an order.

ESIProtocol.pdf (craigball.com)(emphasis added).

UPDATE: In Gunter v. Alutiiq Advanced Security Solutions, LLC, 2023 WL 2330707 (D. Md. Mar. 2, 2023), the Court wrote:

An interlocutory order is subject to reconsideration at any time prior to entry of a final judgment.” Fayettville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991). Further, it is within the court’s inherent discretion to review an interlocutory order for reconsideration at any time prior to the entry of a final judgment – whether on motion of a party or sua sponte. Id. at 1472; see also Amer. Canoe Assoc., Inc. v. Murphy Farms, Inc., 326 F.3d 505 (2003) (citing Fayettville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1469 (4th Cir. 1991)) (holding that “a district court retains the power to reconsider and modify its interlocutory judgments, including partial summary judgments, at any time prior to final judgment when such is warranted.”); McDevitt v. Wellin, No. 2:13-cv-3595, 2104 WL 7146967, *2 (D.S.C. Dec 14, 2014)(same); Thomas v. Andino, No. 3:20-cv-01552, 2020 WL 6324155, *2-*3 (D.S.C. Oct. 28, 2020)(same). [emphasis added].

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[1] A separate blog will address this dispute.