[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Morse Elec., Inc. v. Stearns, Conrad and Schmidt, Consulting Engineers, Inc., 2025 WL 548461 (E.D. Okla. Feb. 10, 2025), Plaintiff’s claim was for $1,571,754.62. The court essentially held that the ESI Protocol was binding. It wrote:
The emails attached to the [Defendant’s] motion to compel show that Defendant notified Plaintiff that its production was not in compliance with the ESI protocol. That protocol controlled in this case and Plaintiff failed to comply with it. Plaintiff essentially ignored its obligations under the discovery order and made no attempt to even contact a vendor until after the order was entered by Magistrate Judge Jackson. Plaintiff’s position on this issue was not substantially justified. [Emphasis added].
Morse Elec., Inc. v. Stearns, Conrad and Schmidt, Consulting Engineers, Inc., 2025 WL 548461 (E.D. Okla. Feb. 10, 2025).
There has been debate over whether ESI Protocols are, or should be, irrevocably binding. Some litigants have refused to enter into ESI Protocols, or refused to agree to incorporate a contractual protocol into a court order, out of concern that a future failure to comply would lead to sanctions. While Morse may appear to confirm those concerns, it seems to me to be based on unique facts.
THE MORSE DECISION
In Morse, the Plaintiff seemed to make several mistakes.
Mistake #1: In Morse, the court wrote that: “The first scheduling order instructed the parties to submit their proposed electronically stored information (ESI) protocols.” Defendant filed a motion to adopt its proposal. Plaintiff was granted two extensions, but did not respond. Nor did it submit its own proposal. The court wrote that it then “adopted Defendant’s protocol [as an order] and no objection to that order was filed.”
Mistake #2: Next, Plaintiff’s interrogatory responses were untimely and the U.S. Magistrate Judge found that “Plaintiff failed to offer any cause or justification for its failure to state objections in a timely manner; … Plaintiff wholly failed to comply with the ESI protocol in the scheduling order; and Plaintiff failed to produce responsive documents in discovery.” That is never a good idea. See Too Busy to Respond to Discovery = Waiver of Objections & Sanctions (Nov. 1, 2024). Defendant’s motion to compel was granted.
Mistake #3: On January 2, 2025,[1] Plaintiff objected to the Magistrate Judge’s December 23, 2024, decision.[2] That objection was timely. Thirteen days after the objection, Plaintiff filed a supplement objecting “to the [Magistrate Judge’s] order as placing an undue burden and expense on Plaintiff in requiring it to comply with the ESI protocol.” Apparently, no motion to extend time was filed. That supplement was held to be untimely. See 28 U.S.C.§636(b)(1)(fourteen days to file objections).
Mistake #4: Defendant asserted that “Plaintiff did not raise these issues before the magistrate judge.” Plaintiff explained that some ESI was destroyed by water and that Plaintiff could not meet with its ESI vendor until December 23, 2024, “and therefore, Plaintiff [only] recently ascertained the costs to comply with the order to produce electronic discovery as ordered.”
The Morse court agreed with the Defendant. The District Judge focused on the mistakes:
At no time did Plaintiff object to the ESI protocol as unduly burdensome due to the cost nor did Plaintiff raise this issue in response to the motion to compel. Therefore, this objection is waived because it was not presented to the magistrate judge. Further, during discovery and more than one year ago, Plaintiff was provided with an opportunity to either agree with Defendant on how to produce ESI or to file its own plan…. Plaintiff failed to do so and Plaintiff did not object when Defendant requested that the court adopt its proposed plan. Plaintiff’s significantly delayed contact with a vendor is not a basis for this court to find error in Magistrate Judge Jackson’s order.
Id.
Plaintiff’s motion to supplement the objection was denied.
In Morse, the court was faced with a series of errors by Plaintiff. On those facts, the holding that the court-ordered ESI Protocol was controlling is fully understandable.
GENERALLY,
AN ESI PROTOCOL SHOULD NOT BE CARVED IN STONE;
HOWEVER, IT ALSO SHOULD NOT BE IGNORED,
AND, THE REMEDY IS TO TIMELY SEEK JUDICIAL RELIEF
In Morse, the ESI Protocol was a court order. The Plaintiff compounded a series of failures by not timely seeking relief from the order after discovering that it could not comply.
Timing can be dispositive. Plaintiffs Raised This Issue With the Court Too Late (Oct. 7, 2024)(“Like Cinderella, the attorney in this case tripped on the electronic stairs at midnight, but his client lost more than a glass slipper.”)(citation omitted); Better Late Than Never? Case Dismissed for Filing 16 Minutes After Midnight (Mar. 17, 2023).
When incorporated in a court order, as in Morse, an ESI Protocol is, of course, no longer a mere agreement; it is an order.
Michael Berman, E-Discovery LLC.
Certainly, ESI Protocols may, and often should, be enforced. Agreement in ESI Protocol to Provide a “Metadata-Only” Privilege Log Was Enforced (Jul. 22, 2024); Scheduling Orders Are Mandatory; Vital to Caseload Management; and, Enforced Even Where Parties Got Themselves Into a “Pickle” by Dilatory Efforts to Cooperate (Oct. 10, 2024). As one court wrote:
[W]hen parties reach an agreement, we ordinarily need to hold them to it. Otherwise, if discovery agreements routinely turn out to be worthless and unenforceable, we deprive the parties of any reason to enter into them.
In re StubHub Refund Litig., 2023 WL 3092972, at *1 (N.D. Cal. Apr. 25, 2023)(Emphasis added).
“Court orders mean what they say, and compliance is not optional.” McClinton v. Cogency Glob., Inc., 2023 WL 3268782, at *3–4 (N.D. Ala. May 4, 2023).
But there is an option. In Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024), the court wrote:
So, here is the deal with a court order, especially one that you stipulated to. It’s an order, so you have to comply with it. If you learn new information that makes it seem like it will be difficult or impossible for you to comply with the order, then you should move to modify the order with reasonable diligence, explaining why the order has become difficult or impossible for you to comply with. You might win your motion, or you might lose, depending on how good your argument is. But that’s what you’re supposed to do if you find yourself in that situation. What you’re not supposed to do is pretend like the order doesn’t exist, or pretend that your violations are somehow a form of compliance, and then hope your opponent doesn’t point out what you’re doing. [Emphasis added].
Cook v. Meta Platforms, Inc., 2024 WL 4133811 (N.D. Cal. Sept. 9, 2024).
While they are orders, court-approved ESI Protocols are in the nature of interlocutory discovery orders that may be modified for cause shown. See StubHub: Modification of ESI Protocol and Denial of Sanctions – Performance Was Impossible (May 23, 2024); Is a Court-Ordered ESI Protocol a Trap? (Sep. 14, 2024); The ESI Protocol: Your Word is Your Bond… Or, Is It? (Jan. 11, 2024); Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II)(Nov. 11, 2022).
Fed.R.Civ.P. 1 calls for the just, speedy, and inexpensive resolution of every action. One of the cases that I have found most persuasive stated:
Clearly a court has the power to modify stipulations concerning discovery terms and deadlines while discovery is still ongoing without the showing of manifest injustice. A court could not effectively perform its duty to fairly and efficiently manage discovery if every minor change to a stipulated briefing schedule or deposition date required a showing of “exceptional circumstances” or “substantial and real harm.” 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….
While Plaintiff should have known better than to agree to the search terms used here, the interests of justice and basic fairness are little served by forcing Plaintiff to undertake an enormously expensive privilege review of material that is unlikely to contain non-duplicative evidence. [Emphasis added].
See The ESI Protocol: Your Word is Your Bond… Or, Is It?
Many other courts, including StubHub, reach the same result.
CONCLUSION
The factual predicate in Morse may be sui generis. It is certainly cautionary. There are many reasons why that ESI Protocol was properly controlling.
When litigants act as Plaintiff did in Morse, courts are often forced to make decisions that could have been rendered unnecessary by a timely motion or by cooperation.
See Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun. 20, 2024).
However, on its facts, Morse does not foreclose granting a timely motion to modify an ESI Protocol based on cause shown. The best way to ensure flexibility is to include what the Hon. Gary R. Jones called a “get out of jail” provision in an ESI Protocol. Cassandre Coyer, E-Discovery Caselaw 2023: ESI Protocols, Intent to Deprive Standard and Relevancy Redactions | Legaltech News (Nov. 10, 2023). That clause could provide for modification by agreement, or for cause or good cause shown.[3]
Notes
[1] Dkt. No. 129.
[2] Dkt. No. 128.
[3] Even if an ESI Protocol is not voluntarily incorporated into a court order by consent of the parties, a court may convert a contractual protocol into an order. Should an ESI Protocol Be Incorporated Into a Court Order? (Mar. 13, 2023)(granting unilateral motion to enter ESI Protocol as an order).
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
