In re Class Action Settlement Administration Litigation, No. 25-mc-00179 (JDB), MDL No. 3162 (D.D.C. July 10, 2026), full opinion (PDF)
Two assumptions run through most ESI protocol negotiations. The first is that a Rule 502(d) no-waiver order is available to any party that wants one. The second is that hyperlinked documents can wait for a later meet and confer. Judge John D. Bates rejected both on July 10, 2026, in the class action settlement administration MDL, refusing a Rule 502(d) order over the plaintiffs' objection and ordering a tiered hyperlink procedure built into the protocol now.
What Happened
MDL 3162 consolidates cases alleging that class action settlement administrators ran kickback schemes with banks and fintech companies that depressed class member payouts. The parties submitted a proposed protective order and a proposed protocol for electronically stored information (ESI), each carrying their unresolved disagreements. Two concerned the protective order, covering Federal Rule of Evidence 502(b) and who must bring a confidentiality designation dispute to the court. Three concerned the ESI protocol, covering short message communications, hyperlinked documents and parent-child relationships, and document collection and production parameters.
Rather than redline the submissions, the court issued an opinion "to provide the parties with guidance to facilitate resolution of their disagreements" and ordered revised proposals by August 10, 2026.
The Court's Analysis
On privilege, the plaintiffs asked that Rule 502(b) govern inadvertent disclosure. The defendants asked instead for a Rule 502(d) order "providing for no waiver regardless of inadvertence or care." The court sided with the plaintiffs. It acknowledged that model orders from at least two districts and from the Sedona Conference exclude Rule 502(b), and that several judges in the District of Columbia have entered Rule 502(d) orders like the one the defendants proposed. What those cases lacked was a contest. The court observed that "it does not appear that any of the judges adopting Rule 502(d) orders in cases cited by defendants did so over any objections."
Parties remain "free to agree to maximally protective Rule 502(d) orders," but these plaintiffs did not consent, and the court said it was concerned about "belated clawbacks once a party has relied on information . . . that has long been disclosed." Under Rule 502(b), the court added, a prompt clawback is likely reasonable absent obvious reliance by the receiving party or "obvious indications that disclosure was careless or intentional."
The defendants won the remaining protective order dispute. The party challenging a confidentiality designation must raise it, because in the court's view "it makes logical sense that the party that disagrees with a designation should make the Court aware of the dispute."
On hyperlinks, the plaintiffs proposed three tiers. Automatic production applies where a document carries five or fewer hyperlinks and automatic collection is feasible. Targeted requests apply where it links to more than five documents or to a folder. A meet and confer applies where the platform does not support automatic collection. The defendants wanted no automatic production duty, with hyperlinked files produced only on written request. The court adopted the tiering, reasoning that "to the extent that a hyperlink looks like an attachment (few linked documents and automatic collection) then production is automatic." The court's premise was the modern document environment, where files are shared through platforms such as Microsoft 365 or Google Workspace by hyperlink rather than as attachments.
Neither of the defendants' authorities survived the comparison. The court read In re Meta Pixel Healthcare Litigation as turning on a finding that the proposed collection tools would not work in Meta's data environment, and Nichols v. Noom, Inc. as resting partly on duplication concerns that have no counterpart here.
The remaining protocol rulings went the same way. Custodian and data source disclosures are due within 14 days of the Rule 26(f) conference. Search terms are to be developed iteratively, with hit reports. Technology-assisted review "shall be permitted only if a TAR protocol is agreed in advance." Validation must be set in advance, because otherwise, the court held, "discovery would be a black box, and our adversarial system does not contemplate such one-sided litigation."
Why It Matters
Counsel who treat a Rule 502(d) order as a formality should read this opinion. A no-waiver order is a bargain, not an entitlement, and the party that wants one has to win an opponent's consent. The fallback is Rule 502(b), where reasonable precautions and prompt correction still control, and where a clawback served after the other side has built a motion around the document is in trouble.
The hyperlink ruling is the one to bring to the negotiation. It asks whether a particular link behaves like an attachment, and it puts that question in the protocol at the outset. Counsel who know which of their client's platforms support automatic collection will negotiate from evidence. Everyone else will be arguing feasibility from assertion.
The full opinion is available as a PDF.
