Amendment to ESI Protocol Granted in Part Over Objection of Defendant

28 Apr 2017

amendment to esi protocolIn Parkcrest Builders, LLC v. Housing Authority of New Orleans, Section J(4), Case No. 15-1533 (E.D. La., Apr. 6, 2017), Plaintiff entered into a contract with Defendant to construct affordable housing. The contract required use of certain treated wood, which Plaintiff deemed unobtainable. Defendant agreed to change the type of wood after 75 days, but Plaintiff averred that the long wait caused delays in the project, and thus filed a Delay Claim with Defendant for additional compensation. The Delay Claim was denied, and a day later, Defendant recorded a Notice of Default, dated back to October, indicating that Plaintiff defaulted on the contract. A week thereafter, Defendant filed another Notice of Default with the Mortgage Records office indicating that Plaintiff defaulted by failing to complete a portion of the work by the substantial completion date. Plaintiff appealed the denial of its Delay Claim, and an arbitrator was appointed but Defendant refused to participate in arbitration. Plaintiff sued in federal court seeking an order compelling arbitration or, in the alternative, a declaratory judgment declaring that the delays in the project were Defendant’s fault and not Plaintiff’s and declaring the Notices of Default as void. Defendant filed counterclaims, and Liberty Mutual Insurance Company (Liberty) was added as a counterdefendant.

The court held a discovery conference and approved a joint ESI protocol. Liberty sought an Amendment to ESI Protocol, with which Plaintiff joined, seeking to allow production of correspondence from more entities and to specify what metadata fields should be included in a TIFF production, as well as to allow for “a comprehensive search methodology.” Defendant opposed the motion, arguing that the parties negotiated the ESI Protocol and that Plaintiff and Liberty could not now amend it to make it more burdensome on Defendant.

The Motion sought to ensure that the scope of discovery was not limited; that discovery was permitted beyond certain named people, or “key persons,” and that others could be added to the list of “key persons”; that the requesting party be permitted additional search terms beyond those used by the producing party; that the size of search results to be considered burdensome be increased from 250 MB to 250 GB; and that documents required to be produced in TIFF format contain specific metadata listed in the Motion. Plaintiff agreed to the changes and joined the Motion. Defendant argued that the changes appeared to burden Defendant more than the other two parties and required it to produce a larger number of documents. Defendant also argued that the changes appeared to remove the meet and confer requirement.

The court noted that current case law was not very instructive regarding modification of ESI protocols. Therefore, the court looked at the factors for modifying a protective order – the nature of the order, the foreseeability of the modification requested, the reliance on the order, and whether good cause exists to modify the order.

The court found that some of the changes proposed appeared to be warranted, such as changes to the “key persons” list; however, the court only permitted the addition of certain named persons and not others. The court therefore granted the motion to that degree, and also granted the request that all TIFF documents contain certain metadata, as Defendant agreed to it at oral argument. The court denied the balance of the motion, holding that Liberty had not shown good cause and that the issues raised were foreseeable at the time the original Protocol was entered.

ILS – Plaintiff ESI Discovery Experts