Failure to Cooperate Leads to Judicially-Imposed ESI Protocol

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

In Zarfati v. Artsana USA, Inc., 2025 WL 50373 (S.D. Fl. Jan. 8, 2025), the court resolved a dispute over an ESI Protocol. Essentially, it adopted the only option provided to it.

Plaintiffs sought class certification discovery. They said that they “have attempted to negotiate [with Defendant] an ESI protocol that will both efficiently identify relevant custodians, data sources, and search terms to ensure relevant information is produced in a usable format.”

Plaintiffs asserted, however, that Defendant “insists on keeping its relevant custodians and data sources to itself (or at least forcing Plaintiffs to try and discover the same through interrogatories and depositions).” The court wrote that:

In the Response, Defendant opposes Plaintiffs’ proposed ESI protocol, characterizing it as “highly technical” and one-sided…. . Defendant explains that it “is a small Pennsylvania-based company” and that the ESI protocol Plaintiffs propose is better suited to “a complex putative class action brought against a Fortune 50 company involving complicated banking and financial information, including detailed provisions about negotiating over appropriate data sources, custodians, and search terms.” … Furthermore, Defendant takes issue with Plaintiffs’ proposed ESI protocol because it requires the Parties to “waste time negotiating search terms, which custodians should be searched, and which data sources [Defendant] should collect from.”

Id. at *1 (emphasis added). 

Plaintiffs responded that Defendant’s “proposed ESI protocol appears to purposely hinder the search for potentially damaging documents, mainly by providing zero visibility into — and zero procedures governing — the company’s efforts to locate responsive materials.” They also argued that this was a nationwide class action.

The Zarfati court said that: “Contrary to Defendant’s assertions, this is not a run-of-the-mill lawsuit nor is Defendant a mom-and-pop business. To Defendant’s first claim, this is a class-action lawsuit that seeks to represent putative class members throughout the United States, involves consumer-protection claims concerning an allegedly known design defect in the braking mechanism of various stroller models, and seeks over $5,000,000 in damages.” It said that Defendant had a global footprint and sold goods in 120 countries.

The court wrote that: “Due to the potential large scale of this case, the Court is inclined to implement a thorough ESI protocol that facilitates the full and efficient disclosure of discoverable ESI.”

It then pointed to an important omission in Defendant’s argument:

Additionally, Defendant’s objection — that the ESI protocol Plaintiffs propose is one-sided and, for that reason, should not be entered — is unconvincing. Although it is true that Plaintiffs’ proposed ESI protocol only applies to Defendant, the Motion, Response, and Reply make clear that Defendants’ ESI will be subject to searches and production during discovery, as further explained below. The same cannot be said of Plaintiffs’ document production. Defendant’s Response does not provide the Court with any information about any discovery requests propounded on Plaintiffs that involve the production of extensive ESI or otherwise substantiate the notion that Plaintiffs’ ESI will be at issue. Thus, as the record currently stands, there is no need for an ESI protocol governing Plaintiffs’ document production. [emphasis added].

Id.

The Zarfati court added: “Likewise, the Court is not persuaded by Defendant’s argument that it essentially has carte blanche to decide the manner in which it searches for and gathers discoverable ESI in this case.” While recognizing The Sedona Principles, the court wrote: “However, a producing party’s right to set its own protocol for producing ESI is not unconstrained, as the protocol it follows must be reasonable.” It wrote that: “Defendant’s proposed ESI protocol does not address how it would conduct a reasonable inquiry when searching its materials.”

The court wrote that the discovery process, especially when it comes to ESI, “is intended to be collaborative.” Id. at *3. “Consistent with the foregoing, courts in this District have not just encouraged but have required parties to confer on matters, such as relevant ESI sources, custodians, search terms, and a proposed ESI protocol.” Id. It wrote that, nevertheless, “Defendant seems resistant to sharing with Plaintiff (or the Court) how it intends preserve, search for, and collect the responsive ESI in the case, leaving the Court unable to assess the reasonableness of the proposed methods.”

Turning to Defendant’s proportionality argument, the Zarfati court found “very little to substantiate this claim.” Id. at *3. Defendant’s “vague and unsupported assertions standing alone do not dissuade the Court from entering an ESI protocol that requires the Parties to confer and identify search terms, custodians, and sources to be searched to facilitate the disclosure of discoverable ESI, especially when a review of various outstanding discovery requests reveals that electronic communications are at issue…. Thus, contrary to Defendant’s conclusory assertions, the Court agrees with Plaintiffs that multiple discovery requests in this case will require preservation, searches, and collection of ESI, making a protocol appropriate and proportional to the needs of the case.”

The Zarfati court then addressed a dispute over email threading. It decided that neither party provided sufficient information on threading: “The one thing the Court can discern from the Parties’ respective explanations of ‘email threading’ is that it could potentially make the review and discovery of relevant information more difficult. Mindful that the ‘Federal Rules of Civil Procedure strongly favor full discovery whenever possible[,]’ the Court will not include a practice in its ESI protocol that makes discovery more difficult absent convincing legal support.” Id. at *4.

The court held that: “With these considerations in mind, a robust ESI protocol appears appropriate. A robust ESI protocol will aid the parties in identifying discoverable ESI, thus helping the Parties complete discovery in this case by Judge Moore’s discovery deadline.” Id. at *5.

As Defendant has not proposed its own alternative protocols for preserving, searching for, and collecting the ESI in the case, the Court will adopt Plaintiff’s proposed protocols, with some minor modifications. Further, the Court notes that the ESI protocol Plaintiffs propose more closely aligns with the objectives of the District’s ESI Checklist. [emphasis added].

Id.

The Zarfati court then published an ESI Protocol. Id. at *5, passim.

It appears that the Defendant held its cards too tightly. Cooperation and transparency are key factors in addressing ESI issues and in persuading courts. Additionally, the Zarfati court demanded specific facts to support each contention. Metrics are critical. One key statement by the Zarfati court appears to be that “Defendant has not proposed its own alternative protocols….”

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