ESI Protocol Disputes Were Resolved by Court

ESI Protocol Disputes Were Resolved by Court by Michael Berman, E-Discovery LLC.
Image: Holley Robinson, EDRM.

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

The Sedona Conference’s Cooperation Proclamation has long and properly suggested that cooperation and transparency are important methodologies. Sedona carefully explains the reasons. 

However, there are also other practical considerations that support cooperation, negotiation, and mediation of disputes. Specifically, courts have stated that a litigant may be “right,” but “find itself on the losing end of a court’s ruling.” Decision on How to Best Search for ESI – Court Orders ESI Protocol in “Epic of Dysfunctional Discovery,” With Unique Clawback Provision (Jul. 23, 2025)(citation omitted).

However, sometimes parties can’t agree. In In Re: GoodRX and Pharmacy Benefit Manager Antitrust Litigation, 2026 WL 207191 (D.R.I. Jan.17, 2026), the parties submitted several disputes over an ESI Protocol to the court.

One disputed question was, if a document is marked “confidential” is it automatically also deemed “relevant?” The court said “no.” “The Court agrees with Defendants that confidentiality and authenticity are distinct.” Id. at *1.

Another dispute was whether information that is “neither relevant nor responsive,” but disclosure of which “would risk substantial competitive or other harm,” can be redacted. Again, the court said “no,” writing: “The Court agrees with Plaintiffs that universal relevance redactions are ‘unworkable’ and not provided for under the Federal Rules.” Id.; see also Relevance Redactions Rejected – Rule 26(f) Resolution (Mar. 23, 2022); 8 Lessons Learned – Part III – Redaction Provision of ESI Protocol (May 8, 2024); Relevance Redactions Prohibited – Again (May 17, 2024).

What Plaintiffs consider ‘Transparency and Cooperation,’ Defendants deem ‘Rigid Requirements for Production of Discovery on Discovery.’

In Re: GoodRX and Pharmacy Benefit Manager Antitrust Litigation, 2026 WL 207191, at *1 (D.R.I. Jan.17, 2026).

Next, the GoodRX court addressed cooperation, writing: “What Plaintiffs consider ‘Transparency and Cooperation,’ Defendants deem ‘Rigid Requirements for Production of Discovery on Discovery.’” Id. at *1. Two ESI Protocol issues came under this rubric: 1) Sources of Discoverable Information; and, 2) Filtering Technologies and Methodologies. Id.

The GoodRX court directed ESI Protocol sections as to both. 

As to Sources of Discoverable Information, the court ordered each party “to provide in writing a list of custodians and non-custodial data sources within that Party’s control1 likely to contain or possess responsive documents.” Id. at *2. Further, “the Parties shall begin discussions on potential search and culling technologies through the meet and confer process prior to providing any written list.” Id.

As to Filtering Technologies and Methodologies, for keyword searches the court ordered a disclosure of search terms and custodians before searching. The requesting party was then permitted to suggest amendments or additions.

After the suggested changes have been provided, the Parties will meet and confer regarding those requested changes proposed by the Requesting Party. The Producing Party will also provide an exchange of information that includes, where relevant: semantic synonyms, code words, acronyms, abbreviations, nonlanguage alphanumeric associational references to relevant ESI, any hit count reports,2 data dictionaries, and any other information agreed to by the Parties. Following the receipt of any such list, the Parties will meet and confer. To the extent the Parties cannot reach agreement on the application of, or procedures for, any search or filtering processes, the Parties may raise such issues for resolution by the Court or its designee.

Id. at *2.

If a party plans to use technology assisted review (“TAR”):

[T]hat Party shall meet and confer in advance of when the Party intends to apply TAR. That meet and confer shall include a discussion of the document population to which the Producing Party intends to apply TAR, the appropriateness of applying TAR to that population, and the methods and measures that will be used to ensure appropriate use of TAR and validation of its results. To the extent the Parties cannot reach agreement on the application of, or procedures for, any TAR process used to exclude potentially responsive documents from human review, the Parties may raise such issues for resolution by the Court.

Id. at *2.

For imaged documents, spreadsheets, and hard copy, a meet and confer was ordered. All disputes were also subject to that requirement. There was no discussion of the use of artificial intelligence.

Next, the GoodRX court addressed the email threading part of the ESI Protocol. Defendants asserted that threading was a routine practice. Plaintiffs replied that they would be deprived of important metadata. “Because the Court finds Plaintiffs’ argument persuasive, Plaintiffs’ proposed language shall be included in the ESI Protocol and Defendants’ will not.” Id. at *3; see Request for Email Threading Protocol Rejected & Discussed Use at Trial (Sep. 29, 2025).

The GoodRX court addressed privilege logging of redactions based on privilege. Defendants wanted to exclude documents redacted for privilege from the logging requirement, asserting that the documents themselves provided sufficient information. Id. at *3. Plaintiffs disagreed. “The Court finds that documents withheld both in their entirety and in part must be included in the privilege log. Accordingly, the Court DENIES Defendants’ request….” Id. at *3.3

For more information on ESI Protocols, disputes over protocols, and potential discussion areas, please see:

Notes

  1. As to “control,” please see: Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022); Possession, Custody, and Control of Third-Party Personal Devices Determined by Information Governance Policies (Apr. 22, 2025); “Possession, Custody, or Control” of State Agency Documents by State Attorneys General? (Sep. 3, 2025); Possession, Custody, or Control of Responsive Information by States Suing Meta (Sep. 12, 2024). ↩︎
  2. “Hit reports” have presented many issues: Agreement in ESI Protocol to Produce All “Hits,” Without Review (Mar. 4, 2025); 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024); Hit Reports (Aug. 14, 2022); How to Avoid Contentious “Hit Report” Problems (Jan. 4, 2023); How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023); Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024). ↩︎
  3. Privilege and privilege logging raise a host of negotiable issues. Does Disclosure of Privileged Information to a “Non-Reporting” or “Hybrid” Expert Waive Privilege? (Jan. 25, 2026); Inadequate Privilege Log Fails to Meet Burden of Proof; Waiver Doctrine Does Not Apply (Jan. 21, 2026); A Privilege Log Can Be Admissible Evidence (Jan. 20, 2026); “Against an AI Privilege” – Are Prompts Discoverable? Is Output? (Jan. 2, 2026); Privilege Log Decision in Blake Lively v. Wayfarer Studios/Justin Baldoni, et al. (Nov. 25, 2025); Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sep. 26, 2025); Court Issues Stern Warning About Privilege Logs (Aug. 11, 2025); Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024); How to Create a “Metadata” or “Metadata Plus” Log Using a Litigation Review Platform (Aug. 7, 2024); Privilege Logs: New Techniques to Achieve Proportionality – The “Certification Log” (Mar. 4, 2024). ↩︎

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

Author

  • Michael Berman

    Michael Berman is a practicing lawyer and an adjunct faculty member at the University of Baltimore School of Law.  He has published extensively, including as the editor-in-chief and a contributing author in “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020), co-editing two American Bar Association books on electronic discovery, as well as co-authoring law review and other articles regarding electronically stored information (“ESI”).  He has presented widely in venues ranging from local to National events and served as a Court Appointed ESI Discovery Supervisor for ESI Protocol.

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