In a recent Key Discovery Points video, Brett Burney and Doug Austin from eDiscovery Today dissected a Western District of New York case that serves as a cautionary tale for anyone negotiating ESI protocols. When parties in Hall v. Warren couldn’t agree on discovery terms, Magistrate Judge Mark Peterson stepped in to create an ESI order — and then systematically overruled nearly every objection the defendants raised about it.
ESI Protocol Court Order: When Judges Step In and Objections Fail
The Hall v. Warren case out of the Western District of New York started as what seemed like a routine ESI protocol discussion. The court attempted to get both parties to meet and confer on a joint proposed ESI protocol, but they simply couldn’t reach an agreement.
So Magistrate Judge Mark Peterson did something noteworthy. He took both proposals, combined elements from each, and created his own ESI protocol. But he didn’t stop there. He entered it as an ESI order, which carries significantly more weight than a simple protocol agreement.
As Doug noted, this distinction matters: “Not adhering to it, you’re violating a court order.”
The City Defendants then filed a series of objections to various provisions in the ESI order. What happened next was, in Brett’s words, “kind of a smackdown.” District Judge Geraci systematically denied their objections, one after another.
The Metadata Battle: Good Cause Required
One of the key disputes centered on metadata production. The Western District of New York has specific local rules (Local Rules of Civil Procedure 26 E.4 and 25 E.5) that were enacted January 1, 2023, to supplement the Federal Rules of Civil Procedure.
Rule 26 E.4 specifically addresses metadata, requiring a showing of good cause and a motion from the requesting party before all metadata must be produced. As Brett observed, “Many times I’ve just taken that for granted. Of course, you supply the metadata — that’s part of the production.”
In this case, the plaintiffs successfully argued that metadata was critical to their claims of excessive force and failure to supervise and discipline in what was essentially a police misconduct case. The court agreed they had shown good cause to require metadata production, and further disagreed with defendants’ argument that plaintiffs needed to establish specific search terms to demonstrate their need.
The Native Format Debate: Old Arguments Don’t Hold Up
Perhaps the most telling exchange in the case involved the City Defendants’ objections to producing documents in native format. They claimed they lacked the technical ability to Bates stamp or redact native files.
Doug characterized this as “the age-old argument we hear” and explained why it doesn’t hold water in modern ediscovery practice:
“It’s easy enough to get around both of those from a Bates stamping consideration. You don’t have to Bates stamp a native file, but you can have a file number, and if you then subsequently have to use that file as an exhibit or whatnot, you can basically take that file level Bates number and put a prefix, a suffix to it, dash one, dash two, to be the pages of that file and produce those as exhibits.”
For redactions, the solution is equally as straightforward. As Doug explained, “It’s pretty common to say, hey, if we’re producing natively, but we have to redact something, we’ll meet and confer on it. We can either potentially redact in the native file, or often what they’ll do is they’ll say files needing redactions, we’ll PDF or TIFF those, redact them and produce them that way.”
As articulated by ediscovery expert Craig Ball, “Don’t let the requirements of a few files dictate the requirements of everything.”
The court wasn’t buying the City Defendants’ technical limitations argument and denied the objection.
Load File Format Complaints: A Professional Should Handle This
Another objection that raised eyebrows involved the specific load file format that plaintiffs were requesting — apparently a Relativity-compatible load file format.
Doug’s assessment was pretty blunt: “Honestly, that’s something any ediscovery professional should be able to produce in a variety of load file formats.”
Brett wondered whether the City Defendants were even using a proper ediscovery platform, nothing that “pretty much any ediscovery platform you’re using today is going to provide some kind of format that will certainly be compatible with Relativity.”
To be fair, the case involved more than just standard emails and documents — there were images and substantial body cam footage, which can present unique challenges. But the load file objection suggested a concerning lack of ediscovery sophistication on the defendants’ side.
Local Rules Matter: Know Your Jurisdiction
A critical takeaway from this case is the importance of understanding local court rules in addition to the Federal Rules of Civil Procedure. The Western District of New York’s local rules go into considerable detail about ESI protocols, and they were created in collaboration with the Federal Bar Association.
As Brett emphasized, “I think almost any ediscovery professional or any litigator, frankly, should make sure you check. There are several courts now that have built up these local rules.”
These local rules provided the foundation for many of the decisions within the ESI protocol court order issued in Hall v. Warren. Without understanding them, the defendants’ objections appeared even weaker than they might have otherwise been.
Brett noted approvingly, “Kudos to the Western District of New York for coming up with this, and at least providing some additional coloring around the Federal Rules.”
Misunderstanding the Order’s Flexibility
Interestingly, Judge Geraci pointed out that the City Defendants seemed to misunderstand what the ESI order actually required. The court noted that the order “doesn’t call for global mandatory production in native format as it specifically states that native production will be considered on a case-by-case basis.”
The order also “mirrors the language of Local Rule 26 E.5 by requiring a particularized showing for native production after initial production.”
In other words, the defendants were objecting to requirements that weren’t as rigid as they claimed. The ESI order actually provided options and flexibility — exactly what Judge Peterson intended when he crafted it from the competing proposals.
The Larger Lesson: Pick Your Battles
Perhaps the most important takeaway from Hall v. Warren came from Doug’s observation about strategy:
“One of the things that this case shows is, you really want to pick your battles when it comes to the confer and the ESI order, ESI protocol, because the last thing you want is a judge deciding your protocol for you. And so, if you can be flexible on certain areas, then that probably gives you a better shot of getting a protocol hammered out between parties.”
When parties dig in their heels over every detail, they risk losing control of the process entirely. Once a judge steps in to create the protocol for you, your negotiating power evaporates.
The City’s Defendants learned this lesson the hard way. As Brett put it: “Certainly when you have a magistrate judge come in and it’s like, okay, well I’m going to pick and choose from these two orders, that’s when you should have raised the arguments.”
Once a judge issues an ESI protocol court order, the opportunity for compromise often disappears.
Cooperation Still Wins the Day
Both Brett and Doug returned to a familiar theme that runs through many ediscovery cases: Cooperation between parties typically produces better outcomes than adversarial battles over protocols.
Brett summarized it well:
“If you can cooperate with the other side, if you can come to some kind of an agreement, that’s going to end up being a little bit better for you today, especially in the federal courts where judges are just not going to have as much patience for these things and this back and forth all the time.”
In an era where judges are increasingly impatient with discovery disputes and armed with detailed local rules about ESI protocols, the cost of being inflexible or appearing technically unsophisticated is higher than ever.
Your Key Discovery Point
The Hall v. Warren case demonstrates what happens when parties can’t find common ground on ESI protocols and a court is forced to intervene. When that happens, your objections to the court-created order better be well-founded and technically sound — not based on outdated arguments about the impossibility of Bates stamping native files or producing standard load file formats.
Know your local court rules, understand modern ediscovery capabilities, and pick your battles wisely. The alternative is having those battles picked for you, and losing them systematically.
Need Help with Your ESI Protocol?
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