How Not to Negotiate an ESI Protocol? Say it is “Mandatory”; and, Demand That Discussions be Recorded

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

In Wilbert v. Pyramid Healthcare, Inc., 2025 WL 873947 (W.D. Pa. Mar. 20, 2025), the court wrote:

From the inception of this action, Counsel for the parties could not agree on the scope and methodology for ESI discovery….  Given [1] the breadth and scope of Attorney XXXX’s^[1] ESI Requests and [2] the content and tone of the XXXX Firm ESI Plan, it is not surprising that Defense Counsel objected to the ESI protocol that Attorney XXXX was demanding be used in this case. 

Id. at *5 (Emphasis added). 

The Wilbert court entered an order that Attorney XXXX show cause why sanctions should not be imposed.

This blog addresses two of the many issues. First, plaintiff’s unilateral demand that the Rule 26(f) conference be recorded was held to be improper. Second, plaintiff’s service of a “mandatory” discovery plan was held to show a lack of cooperation.

Fed.R.Civ.P. 26(f) requires a conference of the parties to discuss a “discovery plan.”  A written report is to be provided to the court and that leads to a Rule 16 conference.  Failure to be prepared for a Rule 16 conference or failure to negotiate a discovery plan in good faith may lead to sanctions. Fed.R.Civ.P. 16(f)(1)(B); accord Fed.R.Civ.P. 37(f).  

In Wilbert, plaintiff Wilbert filed a 179-paragraph Complaint that, in the court’s words, “alleges simple” pregnancy discrimination, retaliation, and other related claims. Id. at *1.  The court wrote that discovery disputes arose immediately.

PLAINTIFF’S UNILATERAL DEMAND
TO RECORD A RULE 26(f) CONFERENCE WAS DEEMED IMPROPER

The Wilbert court pointed to plaintiff’s demand that the “meet and confer” be recorded, writing:

A party may also not impose unreasonable conditions or barriers on their willingness to meet and confer. Here, Defense Counsel contends that Attorney XXXX insisted that he would only meet in person to confer if Defense Counsel acquiesced to his demand that such meeting be recorded.…  Such obdurate behavior in this case lacks justification, defies the bounds of expected professional behavior, and was seemingly deployed to harass Defense Counsel and thwart any meaningful and constructive attempts at resolving the parties’ disputes.

Id. at *9 (Emphasis added).

There have been instances where – – upon a proper predicate – – courts have ordered that a “meet and confer” be recorded.  In Felder: Part 1 of 4:  Court-Ordered Transcription of “Meet and Confer” Session (Aug. 13, 2024),  I described a court-ordered transcription, video recording, and added:

I have often thought about – – and discussed – – bringing a court reporter to a meet-and-confer when I anticipated problems; however, I never did it and could see reasons for an opponent to successfully object to any such effort.  If recording by any means (audio, video, or court reporter) became routine, I suggest that it could chill and impede the negotiation process.  As such, I would not do so with prior court authorization.

Michael Berman, E-Discovery LLC.

The Wilbert court reached the same conclusion on the facts presented.

PLAINTIFF’S TRANSMITTAL
OF A “MANDATORY” DISCOVERY PLAN FELL FLAT

Before the Rule 26(f) conference, plaintiff served a Rule 34(a) request. The December 2015 amendment to Fed.R.Civ.P. 26(d)(2) authorizes delivery of early Rule 34 requests.  The intention is to permit informed Rule 26(f) discussions.

However, this one requested, in the court’s words, “’an electronic forensic search, including deleted files’ for nearly 60 itemized search terms plus their modifying iterations (e.g., ‘litigat!’ would include litigate, litigation, litigating, etc.)…. Among these search terms are many crude, vulgar, and sexual words that seemingly have no relationship to the pregnancy-based discrimination, retaliation, and statutory-leave-denial claims advanced with specificity in Ms. Wilbert’s Complaint.”  Id. at *4.

Additionally, the court wrote that:

In conjunction with these ESI Requests, [plaintiff’s] Attorney XXXX supplied Defense Counsel with a 30-page document entitled “J.P. XXXX & ASSOCIATES, LLC – MANDATORY RULE 26(F)(2), (3) ESI DISCOVERY PLAN FOR USE IN EMPLOYMENT LAW CASES” (“XXXX Firm ESI Plan”)…. Attorney XXXX represents that this document outlines his law firm’s “standard procedures for the Rule 26(f) conference and subsequent proceedings.”

Id. at *5 (Emphasis added).

The “mandatory” nature of that proposal was not well received. 

The Wilbert court wrote that: “Use of the word ‘mandatory’ in the title of this 30-page tome reinforces Attorney XXXX’s intended use of this document to impose extensive ESI protocol requirements unilaterally on opposing counsel and their clients in employment cases generally.”  Id. 

Additionally, in the court’s opinion, the word “mandatory” suggested a lack of cooperation.  The court wrote:  “Furthermore, in the Court’s estimation, the XXXX Firm ESI Plan frames certain conferral elements in an argumentative and non-negotiable manner, suggesting an unwillingness to modify it during the required conferral process.” Id.

The court said that the term “mandatory” also negated proportionality:

“[T]he Court is also of the view that Attorney XXXX’s self-proclaimed ‘mandatory’ approach to ESI discovery in employment cases not only contravenes several provisions of the Federal Rules of Civil Procedure and this District’s Local Rules, but Attorney XXXX’s unilateral imposition of such ESI protocols in all such cases also defies the requirement that even relevant discovery must be: ‘…proportional to the needs of the case….’ It is evident that, in this case, Attorney XXXX has ignored his duty to refrain from discovery efforts that are unreasonable or unduly burdensome or expensive in the context of these proportionality factors.”

Id. at *9 (reformatted).

Further, in the court’s opinion,  the “mandatory” proposal sought to impose preconditions that were inconsistent with the rules:

As set forth at length above, counsel have mutual obligations to confer with each other concerning discovery generally, and even more so for ESI, beginning with their Rule 26(f) conference. This obligation remains whenever disputes arise, or when discovery motions are anticipated or threatened. Here, Attorney XXXX’s refrain that Defense Counsel refused to confer rings hollow and reflects more on Attorney XXXX’s failings in this regard. First, it is not appropriate to insist on “mandatory” ESI protocols and related discovery requests (especially ones not supported by applicable court rules and controlling decisional authority) and deem any objection or disagreement to constitute a failure to confer. Nor is it proper to insist that opposing counsel hire an outside IT vendor and effectuate ESI searches using specified search software (in every case) and refuse to confer over objections and other concerns unless these demands are met. Yet, that is exactly what Attorney XXXX did in this case. The conferral obligation is not a bargaining chip to be offered in exchange for a concession on a disputed discovery process or requested item. Conferral is expected for all discovery planning and dispute resolution and is a precondition to seeking court intervention. A party may also not impose unreasonable conditions or barriers on their willingness to meet and confer.

Id. at *9 (Emphasis added).

This blog omits the many other positions that the Wilbert court deemed improper, including the methodology proposed for “hit reports,”^[2] the request for searches of attorneys and HR personnel who were not involved with the plaintiff, the custodial list and the date range.

Notes

[1] Until a final judgment is entered, I have deleted the attorney’s name and replaced it with “XXXX.”

[2] “Attorney XXXX impermissibly insists that Defendants run so-called ‘hit reports’ on all of his search terms before assessing whether each of those search terms are relevant.” Id. This was, in the court’s words, “backwards and inappropriate.” 

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