An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan”

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

I have suggested that an “ESI Protocol” is not a “Discovery Plan.” “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024). The difference is more than semantics. A “discovery plan” is mandated by the Federal Rules of Civil Procedure. No Rule mentions an “ESI Protocol.”

A “discovery plan” is mandated by the Federal Rules of Civil Procedure. No Rule mentions an “ESI Protocol.”
Michael Berman, E-Discovery LLC.

While it may be imprudent to do so, and it may not be well-received by a court,¹ a litigant can refuse to enter into an ESI Protocol. However, under Rule 37(f): “If a party or its attorney fails to participate in good faith in developing and submitting a proposed discovery plan as required by Rule 26(f), the court may, after giving an opportunity to be heard, require that party or attorney to pay to any other party the reasonable expenses, including attorney’s fees, caused by the failure.”

The difference between the two was at least implicitly recognized in Spetner v. Palestine Investment Bank, 2025 WL 3222473 (E.D.N.Y. Nov. 19, 2025). In that case, “[t]he Court directed the parties to file a proposed Discovery Plan….” The court wrote:

[O]n October 29, 2025, the parties filed a proposed joint Discovery Plan and Scheduling Order, which set forth a limited discovery plan that addresses, inter alia, a potential confidentiality order, an electronically stored information (“ESI”) protocol, and Federal Rule of Civil Procedure 26(a)(1) disclosures, to be accomplished before the end of 2025. [emphasis added].

The parties were ordered to enter into or propose an ESI Protocol. The court wrote: “The parties’ proposed limited discovery schedule will set deadlines for the parties to enter into a confidentiality order and ESI protocol, as well as for Rule 26(a)(1) disclosures by the end of this year.”

In Spetner, a motion to stay discovery was denied in “long-running” litigation.