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Failure to Follow Agreed-Upon ESI Protocols Could Spell Future Sanctions

In re Stubhub Refund Litigation

N.D. Cal. April 25, 2023


Why This Case Is Important

With the exponential increase in electronically stored information (ESI), it’s critical that legal teams consider the structure of their data to ensure outlined ESI protocols can be met during production as to reduce the threat of future sanctions.


In this case, the court addressed a motion to compel the Defendant to produce hyperlinked documents as attachments with the emails in which they were linked.

According to the agreed-upon ESI protocol, responsive items should include the email metadata outlined in the agreed-upon metadata table, including but not limited to all parent items and child files (including hyperlinks to internal or nonpublic documents) with the parent/child relationship preserved. The ESI protocol further provided that “emails with attachments, and email or other documents together with any documents referenced by document stubs or via links to internal document sources within those emails or other documents all constitute family groups.” Finally, the ESI protocol provided that “[h]yperlinked files must be produced as separate, attached documents.”

The court found that, while the Defendant agreed to treat hyperlinked documents as attachments, it had failed to do so. The Defendant claimed to have run search terms on its Google Drive and to have produced responsive documents, but the Defendant did not preserve the parent-child relationship as required by the ESI protocols. Plaintiffs therefore could not tell what document was linked to what email.

The Defendant offered various potential explanations for why it was hard or impossible to locate the linked documents, speculating that the documents were moved to a different place or that email encryption methods had changed, rendering the links untraceable. The Defendant ultimately acknowledged that it did not know the specific reason why it was unable to produce most of the linked documents.


  • Motion to Compel Granted. The court granted the Plaintiffs’ motion to compel, ordering the Defendant to produce its documents in accordance with the technical specifications in the ESI protocol. The court also ordered that, if the Defendant failed to do so, it must produce for deposition a witness with full knowledge of everything the Defendant and its vendors did to attempt to produce the hyperlinked documents.
  • Court Unimpressed with Effort. The court reasoned that “[l]itigants should figure out what they are able to do before they enter into an agreement to do something” and should “live up to their agreements, especially when they are embodied in court orders, as the ESI protocol is here.” Despite being in violation of the ESI protocol, the Defendant “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.”
  • Adherence to ESI Protocols. The court addressed the importance of protocols governing ESI production and agreements between parties, noting that “[w]ithout them, courts would have to rule on everything, and litigation would be even more expensive than it already is.” The court stated that when parties reach an agreement, courts “ordinarily need to hold them to it.”

Legal Analysis

By, Patricia E. Antezana, Reed Smith

Lawyers need to be knowledgeable about clients’ ESI and their technical capabilities before agreeing to ESI protocols. If parties agree to specific ESI protocols, those agreements are binding, and courts will enforce them. Defendant in this case was faced with, at least, increased discovery costs and expenses, and the Court left open the possibility of Plaintiffs’ filing a sanctions motion.

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