Are you using a generic electronically stored information (ESI) protocol without giving it much thought? Paying attention to your ESI protocol is vital, as it can determine the direction of your case and impact your legal risk, cost and efficiencies.
It is crucial for litigators to carefully consider the terms of an ESI protocol when drafting and before agreeing to it. By anticipating any obstacles that may arise during the preservation and collection process due to the unique IT posture of their client, legal teams can identify areas that need to be addressed upfront. An ESI protocol should be customized to the specific client, its ESI and the solutions used because—as the case outlined below shows—there is no one-size-fits-all solution.
There are valuable insights to be gained from the case of In re StubHub Refund Litigation, 2023 WL 3092972 (N.D. Cal. Apr. 25, 2023). In StubHub, the parties agreed to produce hyperlinked documents as attachments in the ESI protocol. However, the defendant could not comply with the protocol due to storage limitations, and many of the hyperlinked documents were unrecoverable. Granting the plaintiff’s motion to compel, the court emphasized the importance of adhering to the ESI protocols generally to expedite discovery. The court also cautioned parties against making commitments they couldn’t meet and warned that sanctions could result from failing to produce requested documents.
The ESI protocol is a critical component of the discovery process and should not be underestimated. To ensure success, the protocol must be based on the actual IT infrastructure of the client. Like other court documents, the ESI protocol should also be customized according to the client’s needs. Therefore, it is essential to have a good grasp of the client’s IT system to ensure that the ESI protocol is tailored accordingly. It is also important to build some flexibility into the order. At a minimum, the parties should agree to meet and confer to alter their ESI protocol in cases where unforeseen circumstances render burdensome any obligations otherwise agreed to.
The StubHub case shows that courts tend to rely on and will enforce the parties’ agreement on discovery matters and will only step in for serious reasons. A customized discovery process, starting from implementing a hold and going through preservation and drafting of relevant court documents, can help prevent needless expenses, lower legal risks and avoid potential spoliation sanctions.