Defendants’ Proposed ESI Protocol Shot Down as Terms Were Like a Protective Order
In EZFauxDecor, LLC et. al. v. Smith, et. al., Case No. 15-9140 (D. Kansas, Mar. 6, 2017), Plaintiffs and Defendants are all online retailers selling adhesive coverings for household appliances and countertops. Plaintiffs sued Defendants for false advertising, tortious interference with business relations, commercial disparagement and false or fraudulent trademark registration.
The parties agreed that a protective order would be required during the case, however since the parties could not agree on the terms, Defendants filed a Motion for Protective Order. Defendants sought an additional level of protection whereby certain documents could be designated “for attorneys’ eyes only,” such as customer identifying information, vendor information and private financial information. Plaintiffs argued that the protections sought by Defendants go beyond what is permitted in the 10th Circuit and would prevent them from obtaining evidence necessary for their Lanham Act claims. The court agreed with Plaintiffs’ arguments, and approved Plaintiff’s more limited protective order.
The parties then could not agree upon the the terms of proposed ESI protocols, fighting over six different issues, including categories of ESI, third parties likely to have ESI, third party web pages, structured data in report format, language regarding improper dissemination of information, and email attachments. Defendants sought extra precautions for the ESI protocol that Plaintiffs argued were more in the nature of a protective order.
The court agreed with Plaintiffs, finding that the elements of Defendants’ proposal that diverged from the agreed-upon terms were not appropriate for an ESI protocol. However, the court did agree with Defendants that the ESI protocol should require that any emails produced must include attachments.