Stipulated ESI Protocols
Tuesday, September 26, 2023
Electronically Stored Information ESI Protocol

In re Diisocyanates Antitrust Litig., MDL 2862 (W.D. Pa. Jan. 26, 2023), is a multidistrict litigation concerning an alleged conspiracy to reduce supply and increase prices for methylene diphenyl diisocyanate (MDI) and toluene diisocyanate (TDI), precursor ingredients for the manufacture of polyurethane foam and thermoplastic polyurethanes.

During discovery, the parties filed various motions with the court. Most recently, plaintiff filed a motion to compel certain defendants to produce text messages and full calendars for a five-year period for approximately 45 custodians (the Motion). Prior to the Motion, the calendars and text messages had been searched using agreed upon keywords for potentially responsive content. Those search terms resulted in the production of approximately 52,000 calendar entries (excluding families) and 4,900 text messages (excluding attachments). Plaintiffs contend in the Motion, however, that the documents yielded by search term review are inadequate and a full linear review of all text messages and custodial calendars is necessary.[1]

Defendants argue in response that review and production of calendar entries and text messages in contravention of the parties’ Stipulated Order Regarding Discovery of Electronically Stored Information (“Stipulated ESI Protocol”) (ECF No. 313), is beyond the permissible scope of discovery, and plaintiffs’ efforts to compel full production only after conducting agreed-upon search term review and production is untimely.[2] Moreover, defendants argue that plaintiffs’ belated efforts to change tack were disproportional to the needs of the case. Indeed, defendants undertook significant and costly efforts to search for, review, and produce voluminous responsive calendar entries and text messages in accordance with the parties’ agreement to use search terms to winnow the universe of data for review and production. To comply with plaintiffs’ subsequent reversal of position would be a significant financial and temporal burden.


The court began its analysis with a review of the scope and limits of discovery as defined by Federal Rules of Civil Procedure Rule 26 noting: “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). When evaluating proportionality, the court considers “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id.

Noting the parties do not dispute the requested material may be relevant and discoverable, the court addressed plaintiffs’ contention that the court should compel the full production of calendar entries and the production of text messages after a linear review because courts “routinely order the full production of calendars without first applying search terms and because the search term review improperly risks excluding relevant evidence.” In dismissing this argument, the court noted the case law plaintiff relied upon was unpersuasive (“there is nothing …in the cases that directs or persuades this Court to require wholesale production of documents without first using search terms” and plaintiff offers “no controlling or persuasive authority to support their contention.”) The court further observed that search term methodologies are “routinely used,” “as an acceptable if not preferred approach” to discovery because while the “use of search terms is imperfect…not using search terms when reviewing a voluminous universe of documents also risks expending time and resources to cull through… irrelevant documents.” Indeed, the standard is reasonableness, not perfection (noting “[o] nly a reasonable search for responsive information pursuant to a reasonably comprehensive search strategy is necessary, and ‘in an era where vast amounts of electronic information is available for review, . . . [c]ourts cannot and do not expect that any party can meet a standard of perfection.’” Enslin v. Coca-Cola Co., No. 2:14-cv-06476, 2016 WL 7042206, at *3 (E.D. Pa. June 8, 2016) (citation omitted)).

Critical though to the court’s decision to deny plaintiffs’ motion to compel was the fact that the parties previously agreed upon the Stipulated ESI Protocol, which does not exclude calendar entries or text messages, and which requires that they “discuss and attempt to reach an agreement on search methodologies with the goal of limiting the scope of document collection, review for production, . . . and facilitating production in accordance with the deadlines set by the Court . . . with the goal of identifying responsive documents.” (ECF No. 313 at 5, ¶5(a)). This Stipulated ESI Protocol provided for a process by which the parties are to develop and apply search terms, as well as a dispute resolution process. (Id. at 5-6, ¶¶ 5(a)(ii); 21, ¶ 9). Therefore, in the absence of any basis to persuade the court to disrupt those agreements and expand defendants’ review and production obligations the court declined to obviate the use of search terms.[3]

In reaching its decision, the court acknowledged that antitrust cases, involving allegations of nationwide anticompetitive collusion, are matters of public importance in which the amount in controversy is significant. The court also considered the parties’ resources and their relative access to relevant information. Most importantly here, however, was the burden or expense of re-reviewing the entire universe of calendar entries and text messages without search terms when balanced against the likely benefit of doing so. Given the substantial time and effort undertaken to search for and produce calendar entries and text messages thus far, and the anticipated time and expense to re-review and produce a broader universe of such documents, such an endeavor is outweighed by the likely benefit of such efforts. Rather, the court found a targeted, follow-up approach as the parties expressly contemplated, is more proportional to the needs of the case at this juncture.

Conclusion While there are many lessons to be internalized from this case (i.e., search terms are routinely used and a preferred approach; reasonableness not perfection is the standard; proportionality is the guidepost), chief among them is that courts will hold parties accountable to the terms agreed to in their ESI protocols.

[1] Remaining at issue are documents that were preserved but not produced because defendants represented the documents did not contain any of the applied search terms. The volume of unproduced calendar entries approximate 350,000 calendar entries and 750,000 text messages.

[2] Counsel engaged in extensive discussions regarding plaintiffs’ document requests (ECF No. 793-1), objections thereto (see e.g., ECF No. 803-2), and the parties’ subsequent agreement to use search terms to winnow the universe of documents for further review and production. (ECF Nos. 793; 801; 802; 803). The parties did so in the context of conferring and reaching agreements on a myriad of other related discovery matters such as the identities of custodians and, particularly relevant here, their Stipulated ESI Protocol. (ECF No. 313).

[3] The court noted, however, that the record reflects disagreements between plaintiffs and defendants as to the adequacy of search terms applied and that plaintiffs reserved their rights to pursue follow-up requests. Such targeted follow-up discovery requests for discernably relevant information, rather than the wholesale production of documents that will certainly yield significant amounts of irrelevant material, is more aptly proportional to the needs of this case.


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