[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Disagreement is not an impasse. “The purpose of an ESI Protocol is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.” Plata v. Lands’ End, Inc., 2026 WL 562138 (C.D. Cal. Feb. 2, 2026)(citation and quotations omitted); see also What is the Purpose of an ESI Protocol? Court Addresses Seven Key Issues.
The purpose of an ESI Protocol is to encourage reasonable electronic discovery with the goal of limiting the cost, burden and time spent, while ensuring that information subject to discovery is preserved and produced to allow for fair adjudication of the merits.
Plata v. Lands’ End, Inc., 2026 WL 562138 (C.D. Cal. Feb. 2, 2026)(citation and quotations omitted).
Plaintiff sent a proposed protocol to defendant. The parties met. Defendant suggested some edits, and said that it was still reviewing the proposal. Later, defendant sent proposed revisions to plaintiff.
“Less than ten minutes after receiving defendant’s revisions, plaintiff replied that the parties would have to submit competing ESI protocol orders and requested a meet and confer.” Id. at *6 (emphasis added). However, when the parties next met to discuss the issues, “plaintiff said it was not prepared to discuss the ESI protocol and protective order and would provide feedback at a later date.”
The court wrote that, as of the date that plaintiff sought relief in court, “he had not responded to defendant’s proposed revisions and the parties had not met and conferred on these documents.” It wrote:
Notwithstanding plaintiff’s assertion that the parties are at an impasse on the ESI protocol, the parties have not fully met and conferred on the ESI protocol and protective order…. Just because plaintiff disagrees with defendant’s proposals does not signify that the parties are at an impasse or that defendant has not acted in good faith. To the contrary, it appears that plaintiff is the party who has not acted in good faith when he himself has not responded to defendant’s revisions or agreed to meet and confer on the documents. The parties must complete their meet and confer efforts and try to reach agreement before submitting the matter to the court if necessary.
Id. at *6 (emphasis added).
See generally “ESI Protocol” v. “Discovery Plan” and An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan”.
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