A discovery order issued in In re StubHub Refund Litigation, No. 20-md-02951-HSG (TSH) (N.D. Cal. Apr. 25, 2023) highlights the importance of consulting attorneys, analysts and/or consultants knowledgeable about e-discovery before entering an ESI Protocol Agreement. The parties here agreed to certain “technical specifications” for document production that were subsequently “so ordered” by the Court. StubHub was then “unable to live up to its agreement” by not producing “linked documents as attachments” and preserving the email “parent-child relationship” as required by the ESI protocol.

StubHub agreed to the following technical specifications for producing responsive documents:

“Email repositories, also known as email databases (e.g., Outlook .PST, Lotus .NSF), can contain a variety of items, including messages, calendars, contacts, tasks, etc. For purposes of production, responsive items should include the ‘Email' metadata/database fields outlined in the Metadata Table, including but not limited to 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 the parent/child relationship preserved. Similar items found and collected outside an email repository (e.g., .MSG, .EML, .HTM, .MHT) should be produced in the same manner.” ECF No. 96 at 12 (emphasis added).

The specifications go on to state: “A document and all other documents in its attachment range, 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. If any member of a family group is produced, all members of that group must also be produced or else logged as privileged, and no such member shall be withheld from production as a duplicate.” Id. (emphasis added). “Hyperlinked files must be produced as separate, attached documents.” Id. at 13.

The Court granted Plaintiffs’ motion to compel, ordering StubHub to produce the documents it had agreed to produce. If it fails to produce the documents, StubHub must produce for deposition a Rule 30(b)(6) witness with “full knowledge of everything StubHub and its vendors did in attempting to produce linked documents as attachments as required by the ESI Protocol.”

The takeaway here is that a party should have full knowledge of what it has the capacity to produce, and be careful what it is agreeing to, before signing an ESI protocol agreement. Simply agreeing to the other side’s protocol can result in significant (and often unnecessary) burden and expense.