The 2020-2021 George Floyd and Daniel Prude protests were the catalyst to several civil rights class actions brought across the United States by plaintiffs alleging harm from police misconduct. For example, protests in Rochester, NY gave rise to Hall v. Warren, 21-CV-6296 (W.D.N.Y. May 14, 2025), where Plaintiffs contended that the City of Rochester’s policy encouraged greater levels of force against “people of color” and failed to provide for disciplinary measures against officers who exerted excessive force.

In Hall, the parties were unable to negotiate a joint ESI protocol despite several attempts to do so. As a result, the Magistrate Judge ordered each party to submit a proposed protocol to the court for consideration. The Magistrate Judge subsequently issued an ESI Order, which incorporated much of Plaintiffs’ proposed protocol, including the production of metadata. Defendants objected to the ESI Order, claiming that it contained “several errors” and should be “vacated in its entirety.”

In support of the Magistrate Judge’s ESI Order regarding production of metadata, Plaintiffs contended that the workflow history and metadata from the use of force reports, civilian complaints, and internal investigation files were “critical to their claims of excessive force and failure to supervise and discipline.” However, Defendants contended that Plaintiffs failed to show good cause to require mandatory global production of metadata for all ESI responses as required under Local Rule 26(e)(4), absent an agreement between parties.

The court considered three factors to determine if Plaintiffs had shown good cause:

1. Whether discovery sought is unreasonably cumulative or duplicative, or could be obtained from a more convenient source;
2. Whether the requesting party has had ample opportunity to obtain the information by discovery in the action; or
3. Whether the burden or expense of the proposed discovery outweighs its likely benefit.

Here, Plaintiffs explained they could not seek the metadata from another source because they sought to verify that the text of the documents obtained in discovery had been revised, which was only discernable through the documents’ metadata. Plaintiffs also asserted that the metadata was relevant to their claims because it pertained to any follow-up investigations and disciplinary processes relating to excessive force accusations. Finally, the court concluded that Defendants’ burden arguments failed to show the Magistrate Judge’s order was clearly erroneous or contrary to law.

Defendants made additional arguments against the ESI Order, including that the Magistrate Judge failed to consider the financial and technical burdens of compliance with the ESI Order. The court found these arguments to be without merit because the rejection of these arguments did not, by itself, indicate that the Magistrate Judge “failed to consider” them. The court also concluded that the ESI Order provided enough flexibility for the parties to address such concerns through collaborative measures. Ultimately, the court affirmed the Magistrate Judge’s ESI Order.

This case highlights one of the key differences between an ESI Protocol and an ESI Order—while an ESI Protocol can be negotiated by the parties and modified as needed, an ESI Order may be more stringent (the ESI Order here provided for further party discussions). Therefore, it is best practice for parties to negotiate an ESI Protocol—ideally, with the aid of counsel and technical experts—to ensure that their discovery needs are met in the case.