[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Orlando Health, Inc. v. HKS Architects, Inc., 2025 WL 744262 (M.D. Fl. Mar. 7, 2025), plaintiff, Orlando Health, sought to compel BBM to comply with an ESI Protocol and BBM sought to compel Orlando Health to do the same.
The court rejected BBM’s argument that a filed ESI Protocol that had not yet been entered as an order was not binding. It also rejected BBM’s effort to impose new conditions.
The court rejected BBM’s argument that it could compel Orlando Health to produce documents based on the ESI Protocol, because BBM had not served a Fed.R.Civ.P. 34 request. The court deferred ruling on an appropriate date range for discovery.
ORLANDO HEALTH’S
MOTION TO COMPEL BBM TO COMPLY WITH ESI PROTOCOL
Orlando Health filed a “Motion to Require BBM’s Attendance at the February 25, 2025 Hearing for Purposes of Disclosing BBM’s Efforts to Comply with Its Discovery Obligations.”
The court wrote: “[A]ccording to Orlando Health, BBM failed to explain how it conducted its search for responsive documents (i.e., custodians, search terms, etc.), and failed to include required custodial field metadata…. So, Orlando Health seeks to compel BBM to: (1) disclose the search terms employed in collecting its responsive documents; and (2) recollect and reproduce emails, to include the required metadata.” Id. at *1.
The court wrote that “BBM does not really explain” its refusal. Instead, BBM contended “that it did not have to comply with the ESI protocol because it was not yet entered by the Court….” Id. at *2.
‘BBM does not really explain’ its refusal. Instead, BBM contended ‘that it did not have to comply with the ESI protocol because it was not yet entered by the Court….’
Orlando Health, Inc. v. HKS Architects, Inc., 2025 WL 744262, at *2 (M.D. Fl. Mar. 7, 2025).
Unsurprisingly, that argument was “unavailing, given that the docket reflects that BBM agreed to the ESI protocol before responding to the discovery at issue.” Id.
The court rejected an effort to impose new conditions. BBM also argued that it had searched more custodians for a broader date range than required by the ESI Protocol. It wrote that it would perform a second search, “provided the parties can agree on the relevant date ranges, custodians, and search terms for Orlando Health’s email search.” Id. at *1 (emphasis in original).
In rejecting that new condition, “the Court also finds unavailing BBM’s argument that it has in essence produced more than was required under the ESI protocol, as entry of the ESI protocol by the Court did not somehow subsequently narrow a production already made, rendering BBM’s concession to a second search conditional on an Orlando Health email search unpersuasive.” Id. at *2.
The court ordered that, absent BBM providing a valid reason for its refusals, “BBM shall produce to Orlando Health: (1) a list of the search terms and custodians used for its October 22, 2024 production to Orlando Health; and (2) a reproduction of the emails produced on October 22, 2024, to include the required metadata.”
BBM’s MOTION
TO COMPEL ORLANDO HEALTH TO COMPLY WITH ESI PROTOCOL
The court wrote: “BBM seeks to compel Orlando Health’s compliance with the ESI protocol as well.” BBM filed an “Amended Motion to Compel Orlando Health, Inc.’s Compliance with ESI Consent Order.”
BBM complained that Orlando Health “unilaterally selected search criteria for its own production,” limited the date range, and “refuses to employ BBM’s requested search terms.” BBM asked the court to compel Orlando Health to use BBM’s time frame and search terms, and use BBM’s search and production criteria. Id. at *2. Orlando Health opposed the request; the court ordered a meet and confer; and, the parties failed to agree.
The court wrote:
On review, to the extent that BBM seeks to compel Orlando Health to produce documents pursuant to the ESI protocol, the motion … is DENIED. BBM bases this portion of its motion on no discovery request, … affirmatively states the motion is brought pursuant to the ESI protocol alone, … and stands firm that “each party’s obligation to search for and produce ESI under the Court’s Consent Order … is not related to or triggered by any RFP that BBM served on Orlando Health….”
Orlando Health, Inc. v. HKS Architects, Inc., 2025 WL 744262, at *2 (M.D. Fl. Mar. 7, 2025).
The Orlando Health court found “no merit” in that argument. It noted that the ESI Protocol governed the scope of discovery. It was not a mechanism to compel discovery.
[A]bsent a discovery request under Rule 34, the Court cannot compel the production of documents from Orlando Health.
Orlando Health, Inc. v. HKS Architects, Inc., 2025 WL 744262, at *2 (M.D. Fl. Mar. 7, 2025).
The court stated the obvious, that “absent a discovery request under Rule 34, the Court cannot compel the production of documents from Orlando Health.” Id. at *2.
However, BBM fared better on its motion to compel Orlando Health to comply with the ESI Protocol. Ruling was deferred on the proper date range.
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