[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4025379 (M.D. Fl. Sept. 3, 2024), the court denied an unopposed motion to enter a protective order and an unopposed motion to enter an ESI Protocol.
The Orlando Health court wrote: “Upon review, the motions fail to establish, by citation to legal authority or otherwise, that the Court’s entry of the proposed orders is necessary or appropriate, particularly in light of the parties’ agreement to the procedures set forth therein. Indeed, the Case Management and Scheduling Order states that ‘[t]he parties may reach their own agreement regarding the designation of materials as ‘confidential.’ The Court ordinarily will enforce signed confidentiality agreements.’”
MIDDLE DISTRICT PRECEDENT
The Orlando Health court cited Middle District Discovery (2021) §VIII (requiring cooperation amongst counsel regarding discovery of ESI and encouraging counsel to discuss protocols for exchange of ESI) and Local Access, LLC v. Kelley Drye & Warren LLP, 2024 WL 3939468, at *1 (M.D. Fla. Apr. 10, 2024) (declining to enter a protective order, stating “as in nearly every other case before this Court, the parties will be directed to meet and confer to enter into a confidentiality agreement”).
Section VIII of the Middle District’s “Civil Discovery Handbook” is posted at Civil Discovery Handbook | Middle District of Florida | United States District Court (uscourts.gov). Section VIII.F states: “The parties should resolve discovery disputes through the meet and confer process or, if such negotiations are unsuccessful, resort to motion practice.”
In Local Access, the court wrote that: “The decision to enter a protective order is within the court’s discretion.” It decided to “reset the parties’ expectations….” Id. at *1. The Local Access court added:
As an initial matter, the Court declines to enter a protective order in this case. Instead, as in nearly every other case before this Court, the parties will be directed to meet and confer to enter into a confidentiality agreement. The operative Case Management and Scheduling Order provides: “The parties may reach their own agreement regarding the designation of materials as ‘confidential.’ There is no need for the Court to endorse the confidentiality agreement. The Court discourages unnecessary stipulated motions for a protective order. The Court will enforce stipulated and signed confidentiality agreements.” [emphasis added].
Local Access, LLC v. Kelley Drye & Warren LLP, 2024 WL 3939468, at *1 (M.D. Fla. Apr. 10, 2024).
THE ORLANDO HEALTH HOLDING
In Orlando Health, the court concluded:
Accordingly, absent some argument or legal authority demonstrating that entry of the protective order or ESI protocol by the Court, rather than private agreement amongst the parties, is proper, the above-styled motions … are DENIED. If a dispute arises regarding private confidentiality or ESI agreements, the parties may seek enforcement by the Court at that time, by citation to legal authority demonstrating that any relief sought is appropriate under governing law. [emphasis added].
Orlando Health, Inc. v. HKS Architects, Inc., 2024 WL 4025379 (M.D. Fl. Sept. 3, 2024).
SOME OTHER CONSIDERATIONS?
However, §VII.B of the Middle District’s Civil Discovery Handbook states: “Parties wishing to keep confidential documents obtained or disclosed during discovery, including for attorneys’ eyes only, may file a motion for protective order, with a proposed order, showing good cause for the relief requested.” Further, under §I.A: “Unless contrary to Rule 29, Federal Rules of Civil Procedure, the parties may stipulate in writing in accordance with Local Rule 3.05, Middle District of Florida, to alter, amend, or modify any practice with respect to discovery.”
This is the first time I have seen a holding such as Orlando Health.
Frequently, parties differ on whether an ESI Protocol Should Be Incorporated Into a Court Order? (Mar. 13, 2023).
I have seen courts order the parties to meet, confer, and draft a protocol. I have not seen a blanket judicial rejection of that process.
And, such a rejection may create problems. For example, Fed.R.Evid. 502 is not fully effective absent a court order. Under Rule 502(e): “An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.”
I wonder what the result in Orlando Health would have been if the parties had submitted a proposed “discovery plan” instead of a proposed “ESI Protocol.”
This is not a mere semantic difference. See Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024).
In “Through the Looking Glass,” Lewis Carroll wrote: “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’”
The term “ESI Protocol” is not found in the Federal Rules of Civil Procedure; however, a “discovery plan” is both rules-based and mandatory. “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).
I wonder what the result in Orlando Health would have been if the parties had submitted a proposed “discovery plan” instead of a proposed “ESI Protocol.”
Michael Berman, E-Discovery LLC (emphasis in original).
After a Rule 26(f) conference, that Rule requires a “report” with a “discovery plan.” A “discovery plan” includes all aspects of an ESI Protocol. Id. Subsection (f)(3) lists the mandatory contents of that “discovery plan.”
Rule 26(f)(2) states in part: “In conferring, the parties must… develop a proposed discovery plan.” [emphasis added]. After a Rule 26(f) conference of the parties, the Rule mandates submitting a “written report outlining the plan.” Under Rule 26(f)(2), the parties must submit “to the court within 14 days after the conference a written report outlining the [discovery] plan.”
That plan is generally to be considered in issuance of a Rule 16 order. See Fed.R.Civ.P. 16(b)(1)(A).
The 1993 Advisory Committee Notes state: “The report from the attorneys concerning their meeting and proposed discovery plan, as required by revised Rule 26(f), should be submitted to the court before the scheduling order is entered. Their proposals, particularly regarding matters on which they agree, should be of substantial value to the court in setting the timing and limitations on discovery and should reduce the time of the court needed to conduct a meaningful conference under Rule 16(b).”
The 2006 notes state: “Rule 26(f) is amended to add to the discovery plan the parties’ proposal for the court to enter a case-management or other order adopting such an agreement…. An order that includes the parties’ agreement may be helpful in avoiding delay and excessive cost in discovery.”
The 2015 Committee Note explains the expansion of the discovery plan rule.
For more, please see “ESI Protocol” v. “Discovery Plan.”
