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Impossibility Is Not a Ticket Out of ESI Protocol Compliance – Case Law Update

Stubhub was chastised in a recent discovery order for agreeing to an ESI protocol, failing to produce documents according to the terms of the protocol, and then arguing that compliance with the protocol was impossible.

October 11, 2023 — by Joe Tate, Member and Managing Director, and Nicole Gill, Counsel, CODISCOVR

Stubhub was chastised in a recent discovery order for agreeing to an ESI protocol, failing to produce documents according to the terms of the protocol, and then arguing that compliance with the protocol was impossible. Magistrate Judge Thomas S. Hixon of the U.S. District Court for the Northern District of California issued a helpful reminder for parties working to reach an agreement on the procedures that will govern the discovery process:

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. And if for some reason, a party learns that a so-called discovery agreement has become impossible to comply with, the party should promptly move for relief, with a good showing that despite its best efforts, compliance is impossible.


We work closely with case teams and opposing counsel to negotiate ESI protocols, ensuring that our clients reach agreements with which they are able and prepared to comply. 

In re StubHub Refund Litigation, No. 20-md-02951, 2023 WL 3092972 (N.D. Cal. April 25, 2023) involves allegations brought by a class of consumers that StubHub’s ticket refund policies in the wake of the COVID-19 epidemic breached consumer contracts and violated state consumer protection laws. Prior to discovery, the parties in the case negotiated and agreed to an ESI protocol that included, among other technical specifications, a requirement that documents linked in a responsive email be produced together with the parent email in a family group. StubHub failed to so treat linked documents when it made its production, which plaintiffs argued violated the terms of the ESI Protocol.

The Court agreed with plaintiffs, and criticized StubHub’s “various explanations” for why it was difficult or impossible to locate the linked documents at issue: that documents on shared drives could be moved to different places, or change due to versioning, or that document systems or encryption methods could change, rendering the links untraceable. StubHub acknowledged that it did not know the specific reason why particular documents were unable to be produced, but that these issues were possibilities.

The Court found that StubHub should not have agreed to an ESI Protocol it could not fulfill, and should have moved for relief from the protocol if necessary, rather than producing documents in violation of the protocol. StubHub was ordered to comply with the terms of the agreement. If StubHub could not do so, the Court ordered it to produce a Rule 30(b)(6) witness with full knowledge of the steps the company took to attempt to comply, noting that after the deposition “Plaintiffs can decide if they have a good sanctions motion or not.” The order was made without prejudice to StubHub moving to modify the ESI Protocol.

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