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    June 26, 2023 Practice Points

    Don’t Make Agreements You Can’t Keep

    Although ESI protocols have some level of uniformity, counsel should confirm it is able to fulfill its obligations in each instance and, if unable to, the non-complying party must move to modify the protocol accordingly.

    By Brian P. Cadigan

    Agreements between parties are inherent to litigation. Recently, in In re Stubhub Refund Litig., 2023 U.S. Dist. LEXIS 74007, the U.S. District Court for the Northern District of California confirmed the importance of upholding a party’s obligations under discovery agreements. Because without agreements, as the court put it, “courts would have to rule on everything, and litigation would be even more expensive than it already is.”

    In In re Stubhub Refund Litig., the parties agreed to an electronically stored information (ESI) protocol, which stated that for the production of ESI, “responsive items should include the ‘Email’ metadata/database fields . . . all parent items (mail, calendar, contacts, tasks, notes, etc.) and child files (attachments of files to email, hyperlinks to internal or nonpublic documents, or other items).” With respect to hyperlinks, the protocol could not have been clearer: “Hyperlinked files must be produced as separate, attached documents.” Seems simple enough, right? Apparently not.

    During the course of discovery, defendant StubHub largely did not produce hyperlinked documents and did not move to modify the protocol to remove its obligation to do so. Instead, StubHub simply ran search terms and produced responsive documents without producing hyperlinked documents. Plaintiff moved to compel production of those documents.

    StubHub explained that there were various reasons for why it could not locate the hyperlinked documents, such as the documents might have been moved to a different place, email encryption methods might have changed, there was a loss of personnel, and there was a change in the document systems. At the end of the day, however, StubHub “acknowledge[d] that for most of the links, it doesn’t know the specific reason why it was unable to produce the linked document; it was just offering up possibilities.”

    The court was not pleased with StubHub’s reasons for noncompliance and recognized that “litigants should figure out what they are able to do before they enter into an agreement to do something. Litigants should live up to their agreements, especially when they are embodied in court orders, as the ESI Protocol is here.” The court did point out that if a party learns it can no longer fulfill its agreement, it has an exit ramp: “Promptly move for relief, with a good showing that despite its best efforts, compliance is impossible.” StubHub, however, kept driving straight.

    The court ultimately concluded that StubHub’s “document production is in violation of the ESI Protocol, StubHub hasn’t done everything it could, it hasn’t moved for relief from the protocol, and it hasn’t settled on a clear story for why producing the linked documents can’t be done.” The court held that if StubHub is unable to “live up to its agreement,” it “must provide a Rule 30(b)(6) witness with full knowledge of everything StubHub and its vendors did in an attempt to produce linked documents as attachments.”

    In re Stubhub Refund Litig. is an important reminder that even though ESI protocols might have some level of uniformity throughout different cases, counsel should confirm it is able to fulfill such obligations in each instance and, when a situation arises in which it is unable to comply, the non-complying party needs to move to modify the protocol accordingly.

    Brian P. Cadigan is counsel at Reed Smith LLP in Los Angeles, California.

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