Incomplete ESI Protocol Negotiations Do Not Justify Delay in Production

Incomplete ESI Protocol Negotiations Do Not Justify Delay in Production by Michael D. Berman, E-Discovery LLC.
Image: Holley Robinson, EDRM.

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

In a recent case, the defendants opposed certain discovery. The court wrote: “Defendants also note that ‘the parties are still negotiating their joint agreement for ESI protocols’ and assert that [t]he parties should not simultaneously be in production while still negotiating their ESI protocols.’ That is an argument for the parties to reach prompt agreement as to an ESI protocol, not for delaying production.” Pinchi v. Mullin, 2026 WL 1108690 (N.D. Cal. Apr. 23, 2026).

Discovery is not a “tit for tat” process. Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us” (Aug. 30, 2025), quoting Lively v. Wayfarer Studios LLC, 2025 WL 2463633 (S.D.N.Y. Aug. 27, 2025). A litigant cannot “fight fire with fire.” Id.

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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