How Not to Conduct a Meet and Confer or Comply With an ESI Protocol

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In 777 Partners, LLC v. Leadenhall Capital Partners LLP, 2025 WL 942414 (S.D. Fl. Mar. 28, 2025), the court entered an order denying plaintiff’s motion to compel supplemental document discovery and closing discovery.

While other issues were addressed, two are discussed in this blog.

First, the court criticized both parties for failing to comply with the letter and spirit of the ESI Protocol; and,

Second, it wrote that: “The meet and confers engaged in by the parties’ counsel are textbook examples of how not to conduct a meet and confer.” [Emphasis in original].

The court wrote that “this is a relatively simple and straightforward case.”  777 Partners alleged that Leadenhall Capital used former 777 Partners’ employees to illegally access 777 Partners’ computers.

The court recited the discovery history and added: “Despite the relative simplicity of this action, discovery has been anything but simple.”

At the Scheduling Conference, the court told the parties about the court’s requirement of good faith cooperation in discovery discussions.  It set milestone dates in the Scheduling Order and then wrote: “The parties involved in this present dispute and their counsel either did not listen or chose to cavalierly disregard the Court’s directives. The parties’ and counsels’ actions have consequences.”

It explained:

Rather than cooperate in good faith to move the discovery process forward fairly and expeditiously, as ethically and legally required, the parties involved in this present dispute and their counsel have seemingly taken every opportunity to delay, frustrate, and impede the orderly discovery process…. The parties have seemingly sat on their hands during discovery, refused to try in good faith to work out their numerous discovery disputes, and then have brought repeated last-minute discovery disputes.

The 777 Partners court described the plaintiffs as “especially problematic….”  Plaintiff’s first discovery motion was filed a little more than four weeks before the discovery cutoff. 

Defendant, Leadenhall Capital, moved to compel additional discovery and 777 Partners moved for additional time to complete expert depositions due to a document production issue.  It also moved for a protective order to prevent certain depositions. More motions were filed and the court wrote:

While this was all being briefed, the parties filed numerous responses, replies, affidavits, declarations, documents, and Court-ordered joint notices in which they continued to bicker about every possible aspect of discovery in this case.

The court wrote that this “last-minute motion practice” required numerous expedited discovery orders and two expedited discovery hearings.

The Court repeatedly warned the parties and their counsel that it would impose sanctions and/or cost-shifting as deemed necessary against dilatory or obstructionist parties and counsel and if discovery obligations and orders were not timely and fully met.

And it assessed fees against plaintiff on one motion.

The court then added:

This all leads to Plaintiffs’ pending Motion…, filed on March 20, 2025—eight days before the limited extended discovery cutoff date of March 28, 2025. The Court has reviewed Plaintiffs’ Motion …, the Leadenhall Defendants’ Response…, and Plaintiffs’ Reply…. The Court will not hold another hearing in this case as the parties do not deserve one. They have wasted enough of the Court’s time with their discovery shenanigans. Moreover, a further hearing in this case is unnecessary as the Court can readily rule on the parties’ papers given the Court’s familiarity with the parties’ incessant discovery disputes. And, it is crystal clear that a further hearing would be wholly unproductive as it would simply give the parties a further opportunity to bicker and cast aspersions on one another. [Emphasis in original].

With that introduction, the court then turned to: “Plaintiffs’ last-minute Motion … [which] seeks supplemental document discovery from the Leadenhall Defendants.”[Emphasis in original].

The 777 Partners court wrote:

An ESI Protocol Order is supposed to streamline the production of Electronically Stored Information (“ESI”) in litigation. See, e.g., The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. 1, Cmt. 3.c, 79 (2018) (discussing how an agreed-upon protocol governing the production of ESI can avoid downstream misunderstandings or disputes). Ironically, in this case, the ESI Protocol Order has had the opposite effect—it has not resulted in any significant cooperation and has simply given the parties and their counsel one more thing to fight about during the discovery process. [Emphasis added].

While both sides agreed to the ESI Protocol, both also claimed that the other violated it. Id. at *3. In the court’s decision, however:

Seemingly, both Plaintiffs and the Leadenhall Defendants failed at various points to fully comply with the letter and spirit of the ESI Protocol and their discovery obligations. Both parties failed at various times to confer on discovery issues in good faith, played games with or delayed discussing search terms and custodians, tried to prevent numerous valid depositions, and generally made the discovery process as difficult, time-consuming, and protracted as possible. On balance, however, the Court finds that Plaintiffs were certainly more dilatory, obstructionist, and evasive than the Leadenhall Defendants during the discovery process. The Court finds it hard to understand why Plaintiffs would file a lawsuit in this district, proceed to ignore this Court’s instructions and orders as to discovery expectations and requirements, and then take steps to delay and frustrate discovery. Unfortunately, that is what occurred in this case. To the extent Plaintiffs claim that they have not received fulsome discovery, they have themselves to blame for this predicament. [Emphasis added].

As one of the textbook examples of how not to meet and confer, the court wrote:

For example, the Leadenhall Defendants’ Response asserts that during the February 10, 2025 meet and confer, they asked Plaintiffs’ counsel to provide search terms but Plaintiffs’ counsel declined and further refused to engage in discussions about data depositories…. In Plaintiffs’ Reply, they admit that “Plaintiffs were in the process of developing their production parameters” and therefore “were not prepared to share their terms.” … This is a mere 40 days or so until the then-rapidly approaching discovery cutoff date of March 20, 2025. According to Plaintiffs, they did not share their search terms with the Leadenhall Defendants until March 4, 2025, shortly before the discovery cutoff date…. Unfortunately, this type of conduct and lack of cooperation by the parties has caused an excessive number of discovery disputes and issues in this case. [Emphasis added].

The court’s holding was succinct: “In light of the conduct of Plaintiffs and their counsel, and considering the arguments of the parties, Plaintiffs’ Motion … is due to be denied in its entirety for several reasons.”  First, 777 Partners “sat on their hands” and the motion was untimely.  Second, 777 Partners did “not come close” to showing good cause for the delay.  Third, “the Court finds that Plaintiffs have received the discovery to which they are entitled in this case, and that any lack of receipt of discovery is due to the conduct of Plaintiffs and their counsel. On the facts and law, Plaintiffs’ Motion is meritless.”

This type of situation is not unique.  How Not to Negotiate an ESI Protocol? Say it is “Mandatory”; and, Demand That Discussions be Recorded (Mar. 26, 2025).

In U.S. ex rel. Gill, et al., v. CVS Health Corp. et al., 2024 WL 3028958, at *5 (N.D. Ill. June 17, 2024), the court wrote that:

There is no need to waste much time parsing and sifting through the parties’ back and forth regarding each of the nearly two dozen questions and responses the parties have asked the court to look at for them. Life is short.

It wrote that “it does boggle the mind to imagine what must go [on] during these sessions.”  Sometimes Discovery Disputes Do Not Bring Out the Best in Us – Part II (Jun. 20, 2024).

After problems arose, litigants have been ordered to transcribe their “meet and confers.”  Felder: Part 1 of 4:  Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024).  Sometimes they have been ordered  to state under oath that they have produced all responsive documents.  Sometimes Discovery Disputes Do Not Bring Out the Best in Us (Apr. 10, 2024). 

I do not know the details of 777 Partners, beyond what the court wrote.  On that basis, “[i]t appears that this litigation was conducted in an Inspector Clouseau-like fashion. However, unlike a Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly.”  Sanctions: Litigant Recently Testified That He Did Not Know What a “Litigation Hold” Was, quoting Coquina Invs. v. Rothstein, 2012 WL 3202273, at *1 (S.D. Fla. Aug. 3, 2012), aff’d, 760 F.3d 1300 (11th Cir. 2014).

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.