Meet & Confer at 10 Paces

There are attorneys who believe the most effective Rule 26(f) meet and confer is simply meeting at dawn with dueling pistols.

The parties in Procongps, Inc. v. Skypatrol, LLC, fought over proclaimed inadequate productions, failures to adequately meet and confer and the defensibility of their productions. Procongps, Inc. v. Skypatrol, LLC, 2013 U.S. Dist. LEXIS 47133, 9-12 (N.D. Cal. Apr. 1, 2013).

The parties Spireon and Skypatrol had many dueling “they did/they did that first” claims before the Court.

Spireon took issue with a discovery production of “410,000 pages of documents” that contained duplicated information. Procongps, Inc., at *8.

According to Spireon, Skypatrol proposed discussing limiting the scope of ESI in the case. According to Spireon, they were willing to “discuss a search of a limited number of custodians using identified terms only after Skypatrol produced documents that could be identified through traditional methods of conferring with Skypatrol’s employees and agents to identify and produce responsive documents.” Procongps, Inc., at *7.

The parties exchanged discussions about discussing search terms, provided that Skypatrol first met is obligation to produce responsive discovery. Procongps, Inc., at *7-8. Skypatrol’s production followed after these exchanges. Spireon then sought an order from the Court for Skypatrol to identify its production by category pursuant to Federal Rule of Civil Procedure 34(b)(2)(E)(i). Procongps, Inc., at *8.

Skypatrol claimed that they had requested to meet and confer over search terms for months. According to Skypatrol, Spireon refused to meet to discuss discovery productions and exchange search terms. Procongps, Inc., at *8.

Skypatrol argued, “Spireon insisted that Skypatrol conduct its own searches and produce documents from over 200 GB of data.” Procongps, Inc., at *8.

Skypatrol claimed that Spireon could not both refuse to cooperate over limiting the scope of discovery through cooperation, then claim Skypatrol produced “too many” documents. Procongps, Inc., at *8-9.

Furthermore, Skypatrol explained that they did run a de-duplication process over its production; the “duplicative” files were email attachments to messages they included for a complete production. Procongps, Inc., at *9-10.

Skypatrol also argued that Spireon’s production was not forensically sound (defensible), because 1) Spireon could not identify any custodians from whom ESI has been collected; 2) Any search terms used to identify responsive ESI other than “Skypatrol;” and 3) The volume of ESI that had been collected or produced by another in the litigation. Procongps, Inc., at *10-11.

After the parties finished taking their respective shots at the other, the Court stated the following:

Based upon the record before the Court, it appears that the parties have not engaged in a meaningful meet and confer process with regard to ESI production. It is the Court’s view that the current document issues could have been avoided if the parties had cooperated with each other. The relief that the parties seek is essentially an order directing the other side to comply with their discovery obligations, and the Court believes such an order would not actually remedy any problems because both parties assert that they have and are fully complying with their discovery obligations. The Court finds that the most efficient solution is for counsel who are responsible for ESI production to engage in an in-person meet and confer regarding all outstanding ESI production issues in an effort to resolve those matters. If the meet and confer is unsuccessful, the Court will refer any disputes regarding ESI production to a Magistrate Judge for resolution.

Procongps, Inc., at *11-12.

Bow Tie Thoughts 

The Dreyfus Protocol should never be included in a meet and confer.

eDiscovery requires attorneys to not simply talk about cooperating, but to actually cooperate. Determining search methodologies, the scope of discovery and production formats do not require the same zeal as cross-examining an adverse witness. It is not supposed to be a game of “gotcha,” but determining the technical framework to get to the merits of the case. This requires attorneys to be tactical and have a strategic vision for how they will handle ESI in their cases. Moreover, parties must engage in more than pillow talk to actually reach agreement on eDiscovery protocols.

The adult supervision in eDiscovery often comes from eDiscovery attorneys in law firms and litigation support professionals. How data is collected, the scope of ESI in the lawsuit, data reduction strategies and review methodologies are vital to litigating a case pursuant to Federal Rule of Civil Procedure Rule 1. Fundamentally, these are the professionals who advise attorneys to not request “any and all” ESI, but “all unique ESI” to limit duplicate data in ESI productions. The value of these professionals cannot be overstated in helping litigators be cost efficient and effective.

Attorneys who want to learn effective eDiscovery strategy should read Michael Arkfeld’s Best Practices Guide for ESI Pretrial Discovery: Strategy & Tactics. It is one of the best books on the subject. In full disclosure, Michael is a good friend and I have helped on many webinars. The book offers a great overview of issues, checklists and discovery strategies every litigator should before a meet & confer.

Clawback Agreements to Eliminate the Burden of Privilege Review

I am gonna to hit the brakes, he’ll fly right by me.

Maverick, Top Gun

You’re gonna do what?

Merlin, Top Gun

 

Attorneys feel compelled by their duty of competency to their clients to have eyes on every document that might be privileged.

Given cases such as J-M Manufacturing it is easy to see why attorneys are concerned about privilege review in large document review cases.

If an associate attorney were to tell a partner she could rely on a clawback agreement and not conduct privilege review, it is a safe bet the partner would respond as Merlin did to Maverick in Top Gun.

In re Coventry Healthcare, Inc. v. This Document Relates involves issued of undue burden in producing electronically stored information. The Defendants argued that the Plaintiff’s proposed search terms produced “hits” of nearly 200,000. The Defendants claimed the estimated cost to process, host and review the data for responsiveness and privilege was approximately $388,000. In re Coventry Healthcare, Inc. v. This Document Relates, 2013 U.S. Dist. LEXIS 39050, at *14 (D. Md. Mar. 21, 2013). Accordingly, the Defendants sought relief under the proportionality principles of Rule 26(b)(2)(C)(iii).

The parties to their credit had negotiated over search terms to ease the burden on the Defendants (and ultimately themselves in what the Plaintiffs would have to review).

The Court made what some would consider a surprising statement: [A] clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. In re Coventry Healthcare, Inc., at *16. As such, the Defendants failed to show undue burden in producing electronically stored information.

The Court’s ruling is not the first time such an order was given. As stated in footnote 6, former Magistrate Judge (now District Court Judge) Paul Grimm found that “the more practical approach is to avoid the necessity of an expensive and time-consuming privilege review by entry of a court order with a clawback provision that protects against a claim of waiver by production of a privileged document.” In re Coventry Healthcare, Inc., at 14-15, fn 6, citing Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005).

The Court granted the Plaintiff’s motion to compel and invited the Defendants to confer with the Plaintiffs on a clawback order if they wanted one.

Bow Tie Thoughts

There are several thought leaders who have argued that the cost of privilege review can be eliminated with protective orders and clawback agreements. While having both is definitely a good idea, many attorneys feel terrified at not conducting some sort of privilege review.

One option to privilege review is to leverage technology-assisted review in identifying potentially privileged ESI. I would still always recommend a clawback agreement and potentially a protective order, depending on the subject matter of the ESI. However, TAR such as predictive coding could be used to identify potentially privileged material. Generally speaking, many attorneys have an idea what sort of communications or files will be protected by a privilege. Leveraging technology to identify attorney-client communications, intellectual property, or personal identifiable information can enable the data to be organized based on both privilege and responsiveness. This allows the attorneys to review data that is potentially privilege, if they are so inclined to have eyes on such ESI.

Relevance, Social Media & Personal Computers

In an employment dispute, the Defendant sought access to the Plaintiff’s Facebook profile and personal computer. The case had involved several discovery disputes challenging the Plaintiff’s discovery productions. Potts v. Dollar Tree Stores, Inc., 2013 U.S. Dist. LEXIS 38795, 5-9 (M.D. Tenn. Mar. 20, 2013).

Among the discovery requests, the Defendant requested “Facebook and/or other social media data” and “Any computers or digital storage devices used by either Plaintiff during and after her employment with Defendant.” Potts, at *3.

The Plaintiff explained they had produced her day planner, documentation of “write-ups” and “store visits” from her employment and all emails relevant to the case. Potts, at *3-4.

The Plaintiff challenged the request for full access to the Facebook profile, arguing that the Defendants had failed to make a “threshold showing that publicly available information on [Facebook] undermines the Plaintiff’s claims.” Potts, at *4-5, citing Thompson v. Autoliv ASP, Inc., 2012 U.S. Dist. LEXIS 85143, 2012 WL 2342928, *4 (D. Nev. June 20, 2012).

The Plaintiff also objected to the request for the computer as unduly burdensome, because she had “produced” the relevant information from the computer. Potts, at *4.

The Court held that that Defendants did not make a showing that the Plaintiff’s public Facebook profile contained information that would reasonably lead to the discovery of admissible evidence. Potts, at *7. The Court based its findings on the Plaintiff’s discovery productions and case law. Id. The Court cited the following in their decision:

[M]aterial posted on a ‘private Facebook page, that is accessible to a selected group of recipients but not available for viewing by the general public, is generally not privileged, nor is it protected by common law or civil law notions of privacy. Nevertheless, the Defendant does not have a generalized right to rummage at will through information that Plaintiff has limited from public view. Rather, consistent with Rule 26(b) . . . [and decisional law] . . . there must be a threshold showing that the requested information is reasonably calculated to lead to the discovery of admissible evidence. Otherwise, the Defendant would be allowed to engaged in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s Facebook account.

Potts, at *6-7, citing Tompkins v. Detroit Metro. Airport, 278 F.R.D. 387, 388 (E.D. Mich. 2012).

However, the personal computer was another story.

The Court agreed the physical production of the computer could lead to admissible evidence, however the parties were ordered to “agree to a word search of Plaintiff’s computer by an agreed neutral party.” Potts, at *8.

Bow Tie Thoughts

Discovery requests are a mix of art and science. Drafting requests requires an attorney to consider the possible sources of ESI, analyze the case facts and draft the reasonably tailored request for discovery. This is easier said than done.

Attorneys really need to be thoughtful in drafting requests for electronically stored information on social media. Done too broadly, it can be the moral equivalent of demanding an MRI in a breach of contract case. At the end of the day, the requests must be for relevant ESI.

Personal computers are another story. A requesting part simply does not get to forage for evidence through someone’s computer. Courts put safeguards in place to avoid privacy from being invaded, such as neutral examiners and the opportunity for privilege review before production.

A good practice is to image a personal computer after a triggering event to preserve any possible relevant information. Costs for such imaging have come down considerably, ranging between $300 to $500 for service providers. This is a very worthy investment compared to the costs of motion practice or defending spoliation claims. Analysis of the contents, searching and processing will drive the cost up; however, talk with the service provider on how they charge for these services. It might be hourly or a flat rate.

Hands-on eDiscovery: California Seminar on Responding to Discovery Requests

I had the good fortune to organize a seminar on responding to electronic discovery requests for the Santa Clara County Bar Association’s Civil Practice Committee on February 27, 2013. However, this seminar was different from other eDiscovery CLE’s, because the attendees spent a full hour conducting searches for responsive ESI to requests for production. The speakers included Santa Clara County Judge Socrates Manoukian (currently assigned to civil discovery), Tyler Atkinson of McManis Faulkner and Charlie Kaupp of Digital Statra.

Our seminar first focused for one hour on the California eDiscovery Act, California Rules of Court on eDiscovery, search and strategies for conducting document review.

Unfortunately, there is very little published California case law on eDiscovery. We have two main cases to explore, specifically Toshiba America Electronics Components v. Superior Court, 124 Cal. App. 4th 762, 764 (Cal. App. 6th Dist. 2004), which addressed mandatory cost-shifting for translation of back-up tapes into a reasonably useable form and Doppes v. Bentley Motors, Inc., 174 Cal. App. 4th 967 (Cal. App. 4th Dist. 2009), which does not address the eDiscovery Act, but unstated litigation hold issues and eDiscovery abuses resulting in an answer stricken and a default judgment entered.

However, at least one unpublished California opinion hints Courts want more than mere speculation that a discovery production was inadequate:

Following remand, Sukumar asked Nautilus to disclose its e-mails and all other electronically stored information concerning the Med-Fit order. After Nautilus responded that it had already disclosed all relevant documents, Sukumar filed a motion to compel. The trial court denied the motion, concluding that Nautilus’s response was sufficient and Sukumar “has offered only speculation that additional documents exist.” On appeal, Sukumar asserts that the trial court’s order denying his motion to compel should be reversed.

Sukumar v. Med-Fit Sys., 2012 Cal. App. Unpub. LEXIS 3309 (Cal. App. 4th Dist. May 2, 2012).

The appeal in the above case was denied, however it a glimpse at how California courts are handling production issues. Unfortunately, California discovery orders are not published and unpublished cases cannot be cited for any precedential value.  We literally have to watch for tentative orders to see how these issues are being presented to the courts to determine any trends. 

The second hour required attendees to work as teams in a review database finding responsive discovery from the ENRON dataset, which was provided by Digital Strata in their InControl review platform.

Searching for responsive electronically stored information is a frequent topic at continuing legal education seminars, but infrequently a hands-on experience for attorneys. Our attendees were very engaged and diligently worked through the different hypothetical discovery requests.

We gave several case law examples of “bad” discovery requests, such as the following:

Produce any and all information related to email, including messages, from 1997 to 2006. 

Using the above as a reminder that production requests must be reasonably tailored to secure the production of documents relevant to the issues in a Federal lawsuit (See,Thompson v. Jiffy Lube Int’l, 2006 U.S. Dist. LEXIS 27837 (D. Kan. May 1, 2006)), we developed Requests for Production such as the following for the attendees:

Request for Production 3:

Any and all electronically stored information pertaining to the $56 million loss on Catalytica Energy Systems, sent between 12/01/2000 to 12/31/2001, in native file format, with the following extracted text or metadata:

From, To, CC, BCC, Date, Time, Subject, Document Author, Document Name, Custodian, Control Number, Folder (System File Pathway).

Request for Production 4: 

Any and all electronically stored information authored by Will Nolen, Sally Beck, Susie Ayala, Shona Wilson or David Port relating to project “jedi” sent between 1/01/2000 to 12/31/2001, in native file format with extracted text, substantive and embedded metadata.

One hour of conducting searches is only the beginning of how to respond to discovery requests. However, it is a very good first hour for attorneys who want to learn how to effectively search and respond to discovery requests.

I would like to put together a future program focused on conducting privilege review, redaction, production and privilege log creation at a future seminar. I also think attorneys would benefit from a half to full day conference focusing on practical eDiscovery, such as issuing litigation holds, tracking hold compliance, document review strategies, developing search strings, testing different search tools (i.e., concept, complex Boolean, predictive coding), and production.

Conducting discovery is a skill. Like any skill, it is best to learn it by actually doing it. I believe our profession needs more hands-on eDiscovery events for attorneys to build their comfort level and confidence to competently represent their clients.

Please Don’t Bates Stamp eDiscovery

This case is my eDiscovery nightmare.

Worse than a clown with snakes.

Let’s review what happened.

The case involved numerous allegations of discovery wrongdoing against the Plaintiff.

The Defendants brought a motion for “discovery abuses intended to harass defendants, cause unnecessary delay, and needlessly increase the cost of litigation.”

The Defendants claimed they had spent $51,122 in legal fees and expenses related to the Plaintiffs’ “document dump.”

The motion was granted and denied in part. Branhaven, LLC v. Beeftek, Inc., 2013 U.S. Dist. LEXIS 13364, 13-14, 22 (D. Md. Jan. 4, 2013).

It Started Like Any Other eDiscovery Dispute…

The litigation had the “traditional” eDiscovery dispute with the Plaintiffs not producing email ESI, because they had not accessed the information, and other significant production delays. As the rather hot bench explained:

Plaintiff’s delay in addressing the lack of access to these email servers is inexcusable. There is no more obvious and critical source of information in the 21st century than a company’s email accounts.  Plaintiff’s counsel’s failure to identify and produce this discovery in a timely fashion and in an acceptable form and manner while suggesting — if not misleading defendants — that it had identified responsive documents is sanctionable.

Branhaven, at *13-14.

Things continued to be problematic for the Plaintiffs, who claimed ESI from laptops would be produced in what the Court described as “blithely” assertions that discovery would be produced “at a mutually convenient time.” In reality, the subject laptops had not been sent to the client (presumedly to for review, raising the issue why hadn’t the hard drives been imaged), until a new associate attorney found them. Branhaven, at *14. Their conduct ultimately resulted in sanctions in the form of fees and costs.

…and then Came the PDFs and Whether the ESI Should Have Been Produced as TIFFs with Bates Numbers to be in a Reasonably Useable Form

The Plaintiffs produced their ESI as PDF’s. The Defendants challenged the production, because the production was untimely and not in TIFF format with Bates Numbers on every page. Branhaven, at *14-15.

The nightmare of a TIFF over a PDF production with Bates Stamps included the Plaintiffs arguing that the discovery request did not request Bates Stamps; nor is it an express requirement in the Federal Rules of Civil Procedure, case law or the local discovery guidelines. Branhaven, at *16.

Moreover, the Protocol for Discovery of Electronically Stored Information (Local Rules of District of Maryland) which states that TIFF is the preferred format is only advisory. The Court called this a “weak defense.” Id.

The Court stated the following on the production:

Moreover, as defendants point out, Fed. R. Civ. P. 34(b)(2)(E)(ii) provides two options regarding the form in which a party may produce documents and plaintiff did not satisfy either. The July 20 production was not in a form “in which it is ordinarily maintained” or in “a reasonably usable form” — as Mr. McNeil showed (especially considering the lateness of the production with depositions looming in a few days). The Advisory Committee Notes to Rule 34 warn that: “[a] party that responds to a discovery request by simply producing electronically stored information in a form of its choice, without identifying that form in advance of the production in the response required by Rule 34(b) runs the risk that the requesting party can show that the produced form is not reasonably usable . . .” (emphasis added). That is precisely what happened here. Branhaven did not advise of the intended form of its production in its March response. Defendant was blindsided by the volume of the documents (since the prior productions consisted of 388 pages). Moreover, defendants had every reason to think that the documents would be completely Bates-stamped, as prior productions were and further defendants had no reason to think that this production would be so incredibly voluminous, as to require special arrangements and explicit agreement.

Branhaven, at *16-17.

The crux of production issue was whether or not the PDF’s were in a reasonably useable form. The Court held they were not, because of the lack of Bates Numbers and the fact they were not in TIFF format. Branhaven, at *17. Additionally, because of the production, the Court awarded the Defendants “the reasonable litigation support costs involved in receiving and processing” the document production. Branhaven, at *19.

Bow Tie Thoughts

Why is this a case a nightmare for me? Because it applies a paper model of discovery to electronically stored information, requiring a conversion of ESI into a TIFF with Bates Stamps (a conversion which can triple processing costs with some service providers). What is even stranger about it is the form of production battle centered on PDFs vs TIFF, both of which are static images. One difference is a PDF can be either non-searchable (thus like a TIFF) or searchable (thus more like a native file).

Demanding electronically stored information be converted to a static image with Bates Numbers is right up there with demanding MP3s be reversed burned to 8 Track. A party should have a good reason to take a native file, that is fully searchable and strip its searchable features. This truly makes it like a piece of paper, rendering the review tools that can do everything from sorting data in chronological order to technology assisted review be useless. It is like trying to fuel a hybrid car with coal.

Removing ESI’s searchable features also violate the Federal Rules of Civil Procedure and a substantial body of case law.

Moreover, claiming there is a functional difference between PDF vs TIFF as static images is like fighting over VHS vs Beta. The problem with such fights is we are in the 21^st Century and not the 1970s. It is almost like arguing Beta is better than Video on Demand, because the issue is not the form, but whether you can analyze the content.

What drives these all too frequent fights? It is attorneys who want pieces of paper to have Bates Stamps. This worked up until the 1990s, but we now live in a world where the content on a smartphone can fill the first floor of a library. Data needs to be reviewed as data for there to be any chance to meaningfully understand its content. Moreover, as to the Bates Numbering to organize the ESI issue, native files can have a “control number” that is the functional equivalent of a Bates Number for management in a review platform. If there is still a concern about whether a file has been changed, parties can use MD5 hash values instead, to ensure the ESI has not been modified.

Finally, I believe forward thinking local rules are extremely helpful for litigants. However, as technology changes, these rules need to be updated to incorporate how computer-assisted review can cut costs, advances in processing or even the cost-effectiveness of remote depositions. What was forward thinking in 2006 can be outdated in 2013.

In the end, converting standard ESI like email to TIFFs to brand Bates Numbers should give lawyers nightmares of high processing costs, slow manual review and unhappy clients. It should only be done when the native file itself is not in a reasonably useable form, thus the static image is the only reasonably useable form.

Drop-by-Drop Water Torture Productions

There are judges who have a way with words when they want to make a point. One example of such judicial prose was by Magistrate Judge Gregory G. Hollows in Botell v. United States:

At this juncture, the United States has purportedly been looking for documents for months, yet the undersigned, to the date of the hearing, does not have confidence that an organized, thorough search has been performed. Rather, defendant’s document production performance in these proceedings has been akin to a drop-by-drop water torture. At some point, plaintiff must be protected from the United States’ further belated production of pertinent documents. The court now enters a preclusion order prohibiting the United States from presenting evidence in its case that had been requested by plaintiffs in the Requests for Production, but which has not been produced by the date of compliance with this order.

Botell v. United States, 2012 U.S. Dist. LEXIS 134265, 15-16 (E.D. Cal. Sept. 18, 2012).

Botell v. United States is a wrongful death and personal injury case involving a minor injured and another killed at a National Park. The Government produced over 7,000 pages of documents, but there was a “a glaring lack of production of emails from defendant’s agents and employees.” Botell, at *11-13. Moreover, the total number of custodians produced by the Defendant totaled one.

The Plaintiffs argued five other relevant custodians’ emails needed to be produced, because the custodians were referenced in the already produced ESI. Botell, at *11.

The Defendants produced one declaration by the Chief Ranger at the park, which explained his efforts to find responsive email.

These efforts included “searching” the office and network drives, and the Ranger’s coordination with officials and IT personnel at another National Park to search another custodian’s computer. The declaration was silent on any search for emails by the other custodians. Botell, at *11-12.

Another declaration curtly explained the back-up policy for Lotus Notes emails as follows: “[B]ack-up emails are retained for 30 days only, unless they are subject to a litigation hold notice or pertain to the BP Gulf Oil spill.” Botell, at *12.

The Court ordered the Defendants to provide a declaration explaining the searches conducted to locate physical and electronic copies of responsive emails by the five custodians. The Court specifically required the following:

The declaration shall state the steps taken to locate these emails, whether any such emails exist, and if not, a definitive statement that they no longer exist. If further responsive documents are located, they shall be produced at the time declarations are filed.

Botell, at *12-13.

Bow Tie Thoughts

Nothing goes for the jugular like a preclusion order for failing to produce discovery. Botell is a powerful example of the dangers of what appeared to be “do it yourself” collection. While it was not outright stated the Defendant did not have an eDiscovery collection expert, it sure sounds that way from the context of the declarations.

One would hope when a large organization has a triggering event for a lawsuit, an effective litigation hold is enacted. Many of today’s records information management systems have the ability to electronically sequester a specific custodian’s email and ESI with a keystroke. Additionally, much of this technology has Early Case Assessment and data reduction features that can identify the relevant information for attorneys to review.

An organization should either have professionals trained in the search and preservation of ESI or retain outside professionals to competently preserve ESI. The steps taken to search and identify responsive ESI must be documented and should, at a minimum, explain the search methodology; technology used; data sources searched; search results; possible exclusions or exotic files; and anything else relevant to explain to a judge how ESI was searched.

A requesting party should not have to blink “torture” in Morse Code for a judge to stop a party neglecting their discovery obligations. An attorney’s duty of competency should compel their preservation obligations are met with those trained to effectively find and produce responsive discovery.

No Differences in Discoverability Between Social Media & Email

Letters versus telegrams. Faxes versus emails.

Attorneys must be familiar with the many ways people have communicated in the everyday course of their lives.

“Social media” is just another evolution in technology for possible sources of electronically stored information.

Robinson v. Jones Lang Lasalle Ams., is a case centering on a motion to compel the production of social media discovery from the Plaintiff in an employment dispute. Robinson v. Jones Lang Lasalle Ams., 2012 U.S. Dist. LEXIS 123883 (D. Or. Aug. 29, 2012).

The Defendants specific sought social media including:

…photographs, videos, and blogs, as well as Facebook, Linkedln, and MySpace content that reveals or relates to Robinson’s “emotion, feeling, or mental state,” to “events that could be reasonably expected to produce a significant emotion, feeling, or mental state,” or to allegations in Robinson’s complaint…

Robinson, at *1-2.

The Court bundled its analysis of the social media discovery bundled with other electronically stored information including email and text messages. As Magistrate Judge Paul Papak wisely stated, recognizing that social media is simply another form of ESI:

I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.

Robinson, at *3.

In determining its order, the Court cited E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F.R.D. 430, 432 (S.D. Ind. 2010) (“Simply Storage“), which “recognized that social media can provide information inconsistent with a plaintiff’s allegation that defendant’s conduct caused her emotional distress, whether by revealing alternate sources of that emotional distress or undermining plaintiff’s allegations of the severity of that distress.” Robinson, at *3-4.

The Plaintiff previously agreed to produce social media discovery “directly referencing her allegedly discriminatory supervisor or ‘work-related emotions.’” Robinson, at *5. Following the principles from Simply Storage, the Court ordered the following:

(1) any: (a) email or text messages that plaintiff sent to, received from, or exchanged with any current and former employee of defendant, as well as messages forwarding such messages; or

(b) online social media communications by plaintiff, including profiles, postings, messages, status updates, wall comments, causes joined, groups joined, activity streams, applications, blog entries, photographs, or media clips, as well as third-party online social media communications that place plaintiff’s own communications in context;

(2) from July 1, 2008 to the present;

(3) that reveal, refer, or relate to: (a) any significant emotion, feeling, or mental state allegedly caused by defendant’s conduct; or

(b) events or communications that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct.

Robinson, at *5-6.

The Court explained that the category of communications pertaining to “any emotion, feeling, or mental state that plaintiff alleges to have been caused by defendant” was in regards to “information establishing the onset, intensity, and cause of emotional distress allegedly suffered by plaintiff because of defendant during the relevant time period.”  Robinson, at *6.

Additionally, the category of communications “that could reasonably be expected to produce a significant emotion, feeling, or mental state allegedly caused by defendant’s conduct” was meant to produce discovery “establishing the absence of plaintiff’s alleged emotional distress where it reasonably should have been evident.” Robinson, at *6-7.

The Court walked the line between limiting discovery and declaring open season on the Plaintiff’s life with the following passage:

As Simply Storage recognized, it is impossible for the court to define the limits of discovery in such cases with enough precision to satisfy the litigant who is called upon to make a responsive production. 270 F.R.D. at 436. Nevertheless, the court expects counsel to determine what information falls within the scope of this court’s order in good faith and consistent with their obligations as officers of the court. Defendant may, of course, inquire about what “has and has not been produced and can challenge the production if it believes the production fails short of the requirements of this order.” Id. Moreover, the parties may ask the court to revise this order in the future based on the results of plaintiff s deposition or other discovery. 

Robinson, at *6-7.

Bow Tie Thoughts

Magistrate Judge Paul Papak did a huge service to eDiscovery with the statement “I see no principled reason to articulate different standards for the discoverability of communications through email, text message, or social media platforms.” Robinson, at *3.

Social media content is just another form of electronically stored information. For example, there is no legal difference in drafting requests for Lotus Notes and CAD files. The same is true for social media, because it is literally just another flavor of ESI. Social media does not require special rules, just a recognition of the procedures that follow such requests.

Social media should not strike fear into the hearts of lawyers. Attorneys must learn to overcome their fear by understanding the types of social media their clients use; ways to preserve social media; what sorts of social media they should request; different forms of production; and whether any privileges apply to the specific electronically stored information.

Requesting Facebook Wall Posts obviously have differences with requests for email messages. However, the Federal Rules of Civil Procedure apply equally to both, and that is something that Magistrate Judge Paul Papak recognized in Robinson v. Jones Lang Lasalle Ams.

Production Requirements Under Federal Rule of Civil Procedure Rule 34 (Video)

Form of Production in eDiscovery

A discussion of the form of production under Federal Rule of Civil Procedure Rule 34, plus one recent case.

Rationally Organized Productions pursuant to Federal Rule of Civil Procedure Rule 34(b)(2)(E)

Production requirements for documents and electronically stored information under Federal Rule of Civil Procedure Rule 34(b)(2)(E) and a short summary of City of Colton v. Am. Promotional Events, Inc., 2011 U.S. Dist. LEXIS 126848, 47-48 (C.D. Cal. Oct. 13, 2011).

Discovery from 3rd Party Vendors

A company outsourcing payroll, human resources and other business services to third parties is standard operating procedure today.  However, what happens when there are discovery requests for a party’s business information hosted by a third-party?

Such discovery requests caused a court to play butcher to carve out the discovery obligations of the parties and third-party vendors in Bush v. Ruth’s Chris Steak House, Inc.

Bush v. Ruth’s Chris Steak House, Inc., is an employment dispute. The first dispute with third-party discovery involved the Defendant’s applicant tracking database. The Defendant did not produce the information, because their third-party vendor maintained it. Bush v. Ruth’s Chris Steak House, Inc., 2012 U.S. Dist. LEXIS 86351, at *10 (D.D.C. June 18, 2012).

The Plaintiffs argued that the Defendants needed to produce and bear the costs of production, because the information was under the Defendant’s custody and control. Id.

The Defendant countered that they did not have “possession” of the applications and that they did “not have control because they have neither possession of the documents nor an employment relationship with the third party vendors, such that Defendants would have a legal right to obtain the documents at issue ‘on demand.’” Id.

As such, the Defendant took the position the Plaintiffs needed to either 1) pay for the production or 2) do a Rule 45 request to the third-party. Bush, at *10-11.

The key issue was whether the Defendant had “control” of the requested discovery.

Case law states the following on “control”:

Control does not require that the party have legal ownership or actual physical possession of the documents at issue, but rather “the right, authority or practical ability to obtain the documents from a non-party to the action.”

Bush, at *11.

The Court did not spend a much time carving up the issue of control, finding it would require a large investment of judicial resources to determine if the Defendant actually controlled its vendor. As such, the cost of $500 for producing the information was to be divided between the parties. Bush, at *12-13.

The other discovery at issue were the employee tests that allegedly were the barriers for advancement for the female employees. Bush, at *13.

A third-party maintained the tests and scores. The third-party stated retrieving the test data would take 40 or more hours. The cost was $150 an hour for the work (so at least $6,000). Id.

The Defendant also maintained the tests in the personnel files, but refused to compile the records, arguing that a prior Court Order stated they were not required to “compile results from review of employee records.”  Id.

The Court was blunt: “The test data sought is in Defendants’ possession, and therefore must be disclosed under Rule 34.”  Id.

The Court explained the prior Order applied to human resource data, not test records. Moreover, the issue of test data was discussed in another area of the Court Order and was not excluded from production. Bush, at *13-14.

Bow Tie Thoughts

Companies use third-party vendors extensively in modern business. Courts will not likely tolerate producing parties using those relationships as a shield from production. Courts will either focus on whether the producing party had “control” of their data; order the producing party to bear the production costs; split the costs between the parties; or require a third-party request in some situations.

My instincts tell me it will likely be the producing party who has to take the laboring oar in ordering the production of data hosted by a third-party vendor. It is very easy for information hosted by a third-party to fall under the Stored Communication Act or other privacy laws regulating hosted data. Moreover, a Rule 34 request can force the producing party to consent to disclosure under the Store Communication Act in order to respond to the request, opposed to requiring the third-party to seek consent from the actual party. As such, focusing on the party and their control over their data is likely the direct approach in requesting such information, opposed to Rule 45 requests on the third parties.

Let’s Ask Dad About the Attorney-Client Privilege

The Defendant, apparently well versed in social-media, requested “[a] complete copy of all communications” between specific individuals and the Plaintiff sent on “Facebook, in a blog, via e-mail, text message, voicemail, letter, facsimile, or anywhere else.”  The Defendant requested the ESI be produced in their “original, unaltered form.” Armstrong v. Shirvell, 2012 U.S. Dist. LEXIS 65697, 5 ( E.D. Mich. May 10, 2012).

The Plaintiff, a college student, objected to producing communications with his father, because his father was an attorney and counseled him on privacy expectations. The Plaintiff believed that his communications with his father to be privileged and protected from disclosure. Armstrong, at *6.

The Defendant countered that the father was a witness to the case who tried to gain access to the Defendant’s Facebook account “by posing under a fake name.” Armstrong, at *13.

The Court held there was an attorney-client relationship between the Plaintiff and his father. As such, the Plaintiff did not need to file a response to the Defendant’s discovery request.  Armstrong, at *14-15.

Bow Tie Law

Just as doctors have family members who call them with health related questions, the same thing happens to lawyers. The issue can become tricky when a question turns into legal advice and your aunt is suddenly a client.

It is very well established that email communications with an attorney seeking legal advice, or the reply giving legal advice, are protected under the attorney-client privileged. It is not a stretch to see a college age son texting his mother the attorney for legal advice. Granted, I am confident no parent wants to see a text seeking legal advice from his or her child at any age.

However, questions seeking legal advice that are public on social media profiles, such as a public wall post from a college student to a parent attorney, arguably were not asked in confidence. When it comes to the attorney-client privilege and modern communications, one must ask, “How was the communication made?” For example, was the text message seeking legal advice sent from a work issued smartphone with no expectation of privacy?

We hold the attorney-client privilege with the upmost reverence for those seeking and providing legal advice. However, those seeking and providing advice must not inadvertently breach the privilege by communicating in public forums where there is no expectation of privacy.