Defendant’s “Wait and See” Approach Rejected In Favor of Entry of ESI Protocol

12 Aug 2022

In WEIDMAN ET. AL. v. FORD MOTOR COMPANY, Case No. 2:18-cv-12719 (E.D. Mich. S. Div. Feb. 3, 2021), before the Court was Plaintiff’s Motion for Entry of an ESI Protocol.

This action arose from an alleged defect with the brake master cylinder in the Ford F-150 trucks, model years 2013 though 2018. Discovery in this case began in March 2021, and the parties engaged in extensive negotiations that concerned an ESI protocol for the production of documents.

Several issues regarding an ESI protocol were in dispute. Specifically, the parties disputed whether an entry of an ESI protocol at this late stage of discovery was warranted. Further, if the Court was inclined to agree with Plaintiffs that entry of an ESI protocol was needed, the parties could not agree on paragraph 15 in the ESI protocol, entitled “Deduplication.” Plaintiffs sought to include “all folder path information” when a party de-duplicated, whereas Defendants maintained that this would cause an undue burden and expense and would be of little benefit to Plaintiffs.

The parties also reached an impasse concerning paragraph 19, entitled “Parent-Child Relationships,” wherein Plaintiffs sought to require Defendant to produce all non-privileged email attachments. Defendant argued this position was unreasonable because this language would require production of nonresponsive documents.

Finally, the parties disputed whether there should be language in the ESI protocol that required all privileged communications with any regulator or government agency to be included in a privilege log. Defendant maintained that this requirement was confusing and unnecessary as the case law and applicable Rules provided clear guidance as to privilege logs.

As to the parties’ first disputed issue, Defendant refused to agree on entry of an ESI protocol and suggested that Plaintiffs wait until Defendant made its outstanding discovery production and then revisit the ESI issue thereafter. Plaintiffs argued such a procedure was impractical and was counter to Rule 1 of the Federal Rule of Civil Procedure which emphasizes that parties share the responsibility to administer the Federal Rules for “the just, speedy, and inexpensive determination of every action” and “[e]ffective advocacy [was] consistent with — and indeed depend[ed] upon — cooperative and proportional use of procedure.” See Fed. R. Civ. P. 1, Adv. Comm. — 2015 Amendments.

Plaintiffs also relied on the Sedona Conference which recommended “[j]ointly developing automated search and retrieval methodologies” as a method to accomplish the discovery rules’ requirement that “counsel [] act cooperatively.” The Sedona Conference Cooperation Proclamation, 10 Sedona Conf. J. 331, 333 (2009).

Defendant argued that it already spent months preparing its production and with a Feb. 5, 2021 deadline that required Defendant to produce its outstanding discovery, an ESI protocol was inappropriate. Defendant argued that Plaintiffs’ proposed ESI protocol would be prejudicial to Defendant since it would require Defendant to expend significant resources and time to conform its production to Plaintiffs’ ESI protocol and potentially cause Defendant to redo considerable portions of its production.

Defendant argued the parties’ time and money would be much better spent on completing production, and a having a meet-and-confer if issues arose. Defendant argued that the Court should not have required entry of “an ESI protocol, and instead [have] permit[ed] the parties to resolve any issues with the production, if any even ar[ose].”

The Court was not persuaded by Defendant’s “wait and see” approach to its discovery production, which was already more than 120 days overdue. Defendant’s claims of substantial prejudice were not well taken where Defendant chose to ignore Plaintiffs’ requests for an entry of an ESI protocol for a case involving multiple vehicle model years and significant electronic discovery. Accordingly, entry of an ESI protocol was warranted and appropriate, according to the Court. However, the Court provided Defendant with a short extension to its discovery production deadline and extended the date from Feb. 5, 2021, to Feb. 12, 2021.

Next, Plaintiffs argued that while removing identical duplicates from a production aided efficiency, it also risked the loss of information such as where the duplicate copy was stored. Thus, Plaintiffs argued that all duplicates’ folder-path information should be included in the metadata.

Defendant countered that production of all folder path metadata was unduly burdensome and disproportionate to the needs of the case, and that if the Court was inclined to adopt Plaintiffs’ paragraph 15 that required all folder path metadata to be produced for the removal of duplicate copies, this expense should be shifted to Plaintiffs.

In this case, the Court found that Plaintiffs did not sufficiently explain the value of the folder path metadata for duplicate copies that were removed from production. Moreover, Plaintiffs failed to demonstrate how all the folder path information was proportional to the needs of the case. Accordingly, the Court adopted Defendant’s proposed paragraph 15 for the ESI protocol.

Next, Plaintiffs sought to require the production of all non-privilege email attachments. Defendant argued that Plaintiffs’ position was not supported by the case law or Federal Rules of Civil Procedure because Plaintiffs had no right to the production of non-responsive email attachments. Defendant argued that requiring production of nonresponsive email attachments was inconsistent with Rule 26 and 34 of the Federal Rules of Civil Procedure because neither Rule permitted a requesting party with the right to receive irrelevant documents.

While the Court agreed that Defendants were not required by the Rule to produce nonresponsive and irrelevant email attachments, the Court also found that requiring Defendant to create a log of the email attachments withheld and the reason for withholding them would ensure that the parties do not have to engage in a numerous meet-and-confers about the nature of what is being withheld.

Since Defendant did not argue that such a procedure was onerous or prejudicial, the Court required Defendant to create a log of withheld email attachments and to identify the reason each attachment was withheld from production. The log was to include sufficient detail so that Plaintiffs could ascertain whether the purported nonresponsive or irrelevant withheld email attachments were in fact properly withheld under the Rule.

Finally, Plaintiffs argued that Defendant should have been required to log all privileged communications regarding interactions with any regulator or government agency, regardless of whether Defendant’s counsel was involved.

Defendant asserted that Plaintiffs’ proposed language about communications with regulator and governmental agencies was superfluous. Here, because Defendant agreed those privileged communications with regulators or government agencies that were responsive to Plaintiffs’ discovery requests would be included in a privilege log, the Court agreed that Plaintiffs’ proposed language in this regard was unnecessary. Accordingly, the Court adopted Defendant’s proposed paragraph 38.