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Magistrate Judge Howard Lloyd engaged in very granular analysis of discovery requests for email messages in a wage and hour case. This type or analysis is a mainstay in many motions over discovery requests, but likely will be more common as Federal Courts conduct proportionality analysis.
The Court first summarized that Plaintiff’s Request for Production number 18, which sought all documents “regarding the acquisition of AT&T Language Line Services.” Van v. Language Line Servs. (N.D.Cal. Mar. 2, 2016, No. 14-cv-03791-LHK (HRL)) 2016 U.S. Dist. LEXIS 26440, at *12.
Judge Lloyd held the Defendants put this information at issue with their argument that the terms of the Plaintiff’s employment were altered by a past acquisition. Id. However, the Court limited the request to information that showed the specific acquisition altered the terms of the Plaintiff’s employment contract. Van, at *13.
Plaintiff’s Requests for Production 19, 23, and 24 all sought specific email regarding the Plaintiff’s employment history. The Court explained that those emails would likely have some probative value to the Plaintiff’s claims. Van, at *12. Judge Lloyd held under Rule 26(b)(1) that “the virtually non-existent burden of producing three specific emails is proportional to the evidentiary needs of this wage-and-hour case.” Id.
Bow Tie Thoughts
I believe that Federal Judges will be very hands-on applying proportionality analysis. That requires requesting parties to be able to effectively demonstrate the “value” of the requested information to a case. It also requires producing parties to demonstrate burden. This means requests for production should not be a matter of dart throwing. Moreover, producing parties cannot simply say, “producing is expensive” in an attempt to avoid discovery obligations.
How can parties accomplish these realities? Both need to conduct effective reasonable inquiry into their case theories. That will most likely take shape with expert forensic reports, early case assessment, and effective document review. Lawyers will need to make clear arguments on why the requested information is needed; Lawyers objecting will need to do so with specificity. Both require analyzing the facts.
Proportionality analysis is making its way into judicial opinions with outright citing the Federal Rules of Civil Procedure. US District Court Judge Robert Bryan in Washington limited additional searches of email based on proportionality and overbroad search requests. Moore v. Lowe’s Home Ctrs., LLC (W.D.Wash. Feb. 19, 2016, No. 14-1459 RJB) 2016 U.S. Dist. LEXIS 20630, at *14-16.
The Plaintiff argued that the Defendant’s email searches were inadequate, because the Plaintiff had emails in their possession that the Defendant did not produce. Moore, at *14. The Plaintiff made the next logical argument that 1) the Defendant should demonstrate that it has done a diligent search; and 2) Defendant should conduct additional searches using terms requested by Plaintiff. Id.
The Plaintiff argued that the new searches should have been conducted without the Plaintiff’s first and last name on each of the witnesses’ email accounts. Id.
That sounds like a totally normal course of action. Unfortunately, the Court did not agree.
The Defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074. The Defendant further argued that the relevant emails from 2012 were likely deleted. Furthermore, the Defendant had conducted the searches, review, and interviews to find similar claims to that of the Plaintiff. Moore, at *14-15.
Here is the crux of the Defendant’s argument: Using 88 new search terms that included annoy*, bull, click*, dad, date*, hand, rack, rod, box, would result in hundreds of thousands of irrelevant emails. Moore, at *15.
Judge Bryan held:
Plaintiff’s request for email searches is overly broad and not proportional to the case. Plaintiff refers to a multi-plaintiff case to support her assertion that Defendant should conduct searches without using Plaintiff’s name. Searching without the use of Plaintiff’s name would not be proportional in this single-plaintiff case. While the additional search terms could possibly yield some relevant results, Plaintiff has not provided specifics about what Plaintiff reasonably expects such a search to show, and Plaintiff has not shown that this information could not be found through other means. For example, Plaintiff has not shown that she would be unable to uncover the same information by asking additional questions of witnesses already scheduled to be deposed. As to this discovery issue, Plaintiff’s motion should be denied.
Moore, at *15-16.
Bow Tie Thoughts
I understand the Judge’s order, but would have recommended a meet and confer over search terms. In my experience, having ONLY 21,000 emails from 17 custodians is a very tiny amount of data. I have worked on cases with 6 to 10 people generating over 300,000 emails on more than a few cases. Given the fact the case involved a single plaintiff, it is very likely that is a reasonable amount of email. A lot would turn on the amount of time the email communications covered.
It is not clear if either side had experts explaining the search terms in affidavits. I agree 88 search terms that include terms like “hand” would generate overly broad results, unless it was limited, such as by specific dates or individuals. It might have been a better plan to bring a motion to compel search strings opposed to individual terms. The results could have been validated with a search term efficiency report, so the attorneys would know how many results would be generated by each search. For there, the parties could negotiate down to what would be reasonable search string requests. However, it is tough to know if that would be the right plan without more information on the case.
There are many lawyers who have an unnatural fear of producing associated metadata with ESI productions. I have always viewed this as producing printed paper without ink on the pages. This is one of cases where I scratch my head at the way the Federal Rules of Civil Procedure is interpreted.
Here is what happened: Requesting Party brought a motion to compel ESI in native file format with associated metadata after a piecemeal production. Producing Party agreed to produce the ESI during a teleconference and a Court ordered was then entered. McSparran v. Pennsylvania (M.D.Pa. Feb. 18, 2016, No. 1:13-CV-1932) 2016 U.S. Dist. LEXIS 19993, at *9-11.
The Producing Party sought a modification of the Court order to not include metadata, claiming the Requesting Party did not originally request the associated metadata. McSparran, at *10. The Court AGREED with the Producing Party.
The Court cited to the metadata definition that metadata is “imbedded information that describes the history, tracking, and management of an electronic document.” McSparran, at *10, citing Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 647 (D. Kan. 2005). Metadata is produced by Court order if 1) the metadata “was specifically requested in the initial document request, and (2) the producing party has not yet produced the documents in any form.” McSparran, at *10, citing Aguilar v. Immigration & Customs Enforcement Div., 255 F.R.D. 350, 357 (S.D.N.Y. 2008).
Metadata is not produced if it was not initially requested or if the ESI was produced in another form. McSparran, at *11, citing Romero v. Allstate Ins. Co., 271 F.R.D. 96, 106 (E.D. Pa. 2010) and Autotech Techs. Ltd. P’ship v. AutomationDirect.com, Inc., 248 F.R.D. 556 (N.D. Ill. 2008).
The Court held it would be unduly burdensome for the Producing Party to produce the ESI with metadata after originally producing the discovery as paper. McSparran, at *11.
Bow Tie Thoughts
I think cases where the Producing Party hides from producing metadata from standard ESI, such as Email, Excel, Word files, misreads the Federal Rules of Civil Procedure and ignores the realities of how collection software works and productions of ESI are made.
In my opinion, not producing embedded or substantive metadata is 1) producing the ESI in not a reasonably useable form, and 2) requires an alternation of the ESI, so the production is not in the ordinary course of business.
A collection expert using any of the great forensic tools is capturing the “data about the data” when they defensibly collect ESI. Virtually all the review applications on the market allow users to select which metadata to produce, such as To, From, Subject, Body, etc., etc. To do a “native file” production without metadata would require: 1) actively selecting not to produce metadata and 2) scrubbing the metadata from the native files. I would argue that both violates the Federal Rules of Civil Procedure and would make a solid argument for the willful destruction of evidence if an attorney is erasing track changes and other file history.
I think there is a strong argument that ESI without metadata is not in a reasonably useable form, as it hinders document review. Review applications use the metadata to populate the database of “objective coding,” the information gleamed from the four corners of a document. The content of ESI is also needed for most advanced analytics review applications to analyze communication patterns for relevance or privilege. Eliminating that information makes reviewing a production harder, driving up costs in violation of the spirit of Federal Rule of Civil Procedure Rule 1.
My views on metadata are not the law, but I think they would make very strong arguments, if coupled with expert affidavits explaining to a Court how “metadata” is collected and what it takes to actively decide not to produce the ESI as it is ordinarily maintained.
The new Amendments to the Federal Rules of Civil Procedure are bringing new voices to discuss eDiscovery. Magistrate Judge Nina Y. Wang issued a thoughtful opinion of the new Rules in Kissing Camels Surgery Ctr., LLC v. Centura Health Corp. (D.Colo. Jan. 22, 2016, Civil Action No. 12-cv-03012-WJM-NYW) 2016 U.S. Dist. LEXIS 7668.
Here is the short version of the dispute in a complex case: The Plaintiff brought a motion to strike the Defendants’ requests for production that were duplicative. The Plaintiff had already produced a terabyte of ESI and were not in the mood for the Defendants’ position that the Plaintiff identify what ESI they had already produced that was responsive to the Defendants’ requests. Kissing Camels, at *3-4, 7-9.
Judge Wang very effectively summarized the world of civil litigation by invoking Chief Justice John Roberts’ Year End Report on the Federal Judiciary, which stated the 2015 FRCP Amendments were intended to:
(1) Encourage greater cooperation among counsel;
(2) Focus discovery—the process of obtaining information within the control of the opposing party—on what is truly necessary to resolve the case;
(3) Engage judges in early and active case management; and
(4) Address serious new problems associated with vast amounts of electronically stored information.
Kissing Camels, at *5.
Judge Wang also made it a point to highlight the Chief Justice’s note that Rule 1 gives both lawyers and the Court an affirmative duty to work together to resolve disputes efficiently. Id.
The Court further outlined the proportionality principles of Rule 26(b)(1), which require Courts to “consider 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 discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Kissing Camels, at *5-6.
The Court noted that many of the Defendants’ discovery requests were improper omnibus requests where no effort was made to tailor the discovery request to the issues in the case. Kissing Camels, at *7-8. The Plaintiff rightly objected to these requests, but made only improper boilerplate objections. Kissing Camels, at *8. The new Rule 34(b)(2)(B)-(C) requires parties to object with “specificity” and “an objection must state whether any responsive materials are being withheld on the basis of the objection.” Id. The Court described the Plaintiffs’ objection as follows:
As far as this court can tell, Plaintiffs fail to provide any specificity to their objections, including their objection that they have already produced responsive documents. Rather, it appears that Plaintiffs’ response simply points generally to the production of 1 terabyte of information—conservatively, millions of pages—without providing any type of guidance to Defendants as to where in the production such responsive documents are to be found.
Kissing Camels, at *8-9.
Judge Wang took a deep dive into the issue of whether Rule 34(b)(2)(E)(i) and (ii) both apply to electronically stored information. As many recall, subsection (i) requires a party to produce documents in the ordinary course of business or label a production. Kissing Camels, at *9. Many courts have treated (E)(i) and (E)(ii) as “supplementary rather than alternative.” Kissing Camels, at *12.
The ESI had been produced in a searchable format, so normally there would be no further analysis or production requirements. However, the Court noted the case was not ordinary. Judge Wang explained:
Based on the specific facts before me, including the volume of the document production to date, the asymmetry of information regarding the production between Plaintiffs (who are trial ready with respect to co-Defendant Centura Health Corporation and in a separate case with similar allegations against Cigna), the duration of time during which this case has been pending, and the fact that the Parties suggest that additional discovery must be conducted as to both the claims of the Second Amended Complaint and the counterclaims asserted by Defendants, this court concludes that Plaintiffs must provide additional information about where in the production Defendants may find certain information. This court will not, however, compel Plaintiffs to provide bates range numbers for responsive documents for every Request for Production; given the breadth of the discovery requests, such an Order would simply foment additional disputes. Rather, this court will permit Defendants to identify ten limited categories of documents already requested through the existing Requests for Production to which Plaintiffs objected based on being duplicative (e.g., documents that reflect Plaintiffs’ internal communications regarding network contracts with United, Anthem, Aetna) no later than February 4, 2016. Once identified, Plaintiffs must identify bates ranges of responsive documents to those ten categories, in writing, no later than February 16, 2016. This will ensure that Defendants prioritize their requests regarding location of responsive documents within the 1 terabyte of data, and will limit Plaintiffs’ obligation to sort through the production on Defendants’ behalf and correlate every Request for Production to specific bates ranges.
Kissing Camels, at *14-15.
Bow Tie Thoughts
Electronically stored information is generally produced as it is ordinarily maintained or in a reasonably useable form under Rule 34(b)(2)(E)(ii). However, I still like to do my issue coding for responses that could comply with Rule 34(b)(2)(E)(i) for organization.
Binders in Everlaw grouping discovery responses.
I like setting up issue coding to correspond to each request for production. As searches are conducted for each response, ESI that is responsive to that request is tagged for that response. As is often the case, an email or Excel file can be responsive to more than one request, but that does not mean the data is produced more than once. After review for responsive discovery is completed, a report can be exported out to Excel if the requesting party has sought the production to comply with Rule 34(b)(2)(E)(i).
I know many attorneys who think is a waste of time. Others take a hard line to make the other side’s life as difficult as possible. I think it is vital for internal monitoring of knowing which ESI is responsive to what request. Moreover, if there is a reason to object to a specific request, knowing what ESI might be responsive makes objecting to that request with specificity a far easier task.
CSV Export from Everlaw with fields and objection.
Discovery disputes often result in strong judicial rebukes. Then there are the judges who work in a good Star Wars reference in an opinion. This case has both.
Judge Richard Jones must have felt he was dealing with a phantom menace of discovery disputes, because most of the issues in the case could have been solved if the parties actually had a meaningful a meet and confer. Instead, the Court dressed down the attorneys on their meet and confer efforts:
This discovery dispute has quickly transformed into a behemoth, replete with competing and disputed descriptions of at the Parties’ efforts to meet and confer. This is not the cooperative discovery contemplated by the Federal Rules of Civil Procedure (the “Rules”) and this Court does not look kindly on the Parties’ behavior, especially when even a quick a review of the record reveals that many of the disputes have since been resolved and would have been resolved even without judicial intervention.
Cedar Grove Composting, Inc. v. Ironshore Specialty Ins. Co. (W.D.Wash. Dec. 23, 2015, No. C14-1443RAJ) 2015 U.S. Dist. LEXIS 171576, at *2-3.
The first issue was a motion for fees by the Plaintiff to recover costs for a motion to compel. The Court denied the motion, holding that the “that Plaintiff did not attempt in good faith to obtain the requested discovery prior to filing its Motion to Compel.” Cedar Grove, at *5. Judge Jones explained that the Plaintiff’s effort to confer with the Defendant over a discovery production could “hardly” be described as done in good faith to resolve issues. Cedar Grove, at *6.
The parties had a telephone meet and confer that had two very different stories, depending on which party was telling the story. The Defendants offered three attorney declarations that recounted the call, which the Plaintiff’s attorney did not dispute. The Court found that “unacceptable.” Cedar Grove, at *7.
In summarizing the dueling meet and confers, the stated the “Plaintiff has given the meet and confer requirement short shift.” Cedar Grove, at *8. Moreover, the Plaintiff never discussed the only remaining discovery dispute between the parties regarding an attorney retained to assess insurance coverage. Id. Furthermore, the motion to compel pertained to amending the Defendant’s privilege log, which was produced before the briefing on the motions had even been finished. Cedar Grove, at *9.
This is right up there with Admiral Kendal Ozzel coming out of light speed directly above Hoth. Unlike Vader, the Court took this moment as a learning opportunity, stating:
The Court will take the opportunity to advise the Parties of the necessity of meaningfully cooperating in discovery. What this means is actively meeting and conferring regarding discovery issues before bringing any concerns to the attention of the Court. In order for the Parties to engage in meaningful, cost-effective discovery, they must cooperate in accordance with the spirit and purposes of the Rules. The Court strongly encourages the Parties to promptly meet their respective discovery obligations without resort to motion practice and advises them that “it would be wise for the parties to consider the letter and spirit of the Rules regarding discovery and engage in open, cooperative, meaningful and efficient discovery practices.”
Cedar Grove, at *10-11, citations omitted.
The next issue addressed whether the attorney-client privilege or work product doctrine applied to communications from an attorney retained to analysis possible liability and its renewal policy. Cedar Grove, at *13. What followed was beautiful analysis of what was protected by the attorney-client privilege and what was protected by the work product doctrine. Effectively summarizing the work product doctrine, for a document to be protected, it must: “1) be ‘prepared in anticipation of litigation or for trial’ and (2) be prepared “by or for another party or by or for that other party’s representative.” Cedar Grove, at *18.
The review of the subject communications sought for production revealed they were covered by the work product doctrine. Cedar Grove, at *18-19.
The Plaintiff argued that the Defendant was not producing written claims files improperly withheld behind the work product doctrine, taking the position that the files “simply must exist.” Cedar Grove, at *19.
The Court addressed the Plaintiff’s argument in footnote 4, stating:
In addressing this argument, the Court is tempted to simply invoke Occam’s razor — “that in explaining anything, no more assumptions should be made than necessary.” See ACLU v. Clapper, 804 F.3d 617, 624 n.2 (2d Cir. 2015) (quoting Oxford English Dictionary (3d ed. 2004)). Perhaps it is too much of an assumption to think that Defendant seriously trying to mislead both Plaintiff and the Court by simply waving its hand and stating that “these aren’t the droids you’re looking for.” Star Wars: Episode IV — A New Hope (Lucasfilm 1977). A simpler explanation is that many of those documents do exist — and Plaintiff has received them (and would have received them) without this Court’s intervention.
Cedar Grove, at *20, footnote 4, emphasis added.
The Court ultimately held that the subject documents were protected by the work product doctrine and likely covered by attorney-client privilege under state law. Cedar Grove, at *21-22.
Bow Tie Thoughts
There are many Federal Judges who masterfully explain Civil Procedure and enjoy Star Wars. It is good to know Judge Richard Jones can discuss the work product doctrine and make an Obe-Wan Kenobi reference.
Conducting privilege review often is reduced to attorneys simply checking a box that an email, document, or Excel file is “privileged.” The term “privilege” cannot be an all-encompassing term to be used in a privilege log. What is the actual privilege being asserted? If it is an attorney-client communication, it has to be a communication from the client to a lawyer seeking legal advice, or a communication from the lawyer to the client giving legal advice.
Lawyers should define the privileges in their case and set-up document review to reflect those privileges. If privilege issue tagging is done, coupled with notes stating the claimed privilege, the reviewing attorneys are building their privilege logs as they conduct document review. This is far easier then trying to later use the Force to construct an effective privilege log as a later step.
The City of New York, 50 unnamed NYPD officers, and the former NYPD Commissioner are involved in a civil rights lawsuit over allegedly issuing summonses without probable cause, violating the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, if true. The City was found to be grossly negligent in issuing and executing its litigation hold for the preservation of email and text messages. Stinson v. City of New York (S.D.N.Y. Jan. 2, 2016) 2016 U.S. Dist. LEXIS 868, at *1.
The City did not issue a litigation hold until three years AFTER the complaint had been filed. The Court stated that litigation hold was not effectively communicated and the officers listed in the City’s initial disclosures did not acknowledge receiving the hold notice. Stinson, at *3-4.
The NYPD had a document destruction policy of three years for bureau chief memos and four years for monthly performance reports and summonses. Stinson, at *4. The NYPD “did not have a specific policy with regards to the destruction of email communications, it did impose a hard size limit on officers’ inboxes, and that when officers hit that limit, ‘they delete.’” Stinson, at *5. The NYPD document retention and destruction policy did state, “unless specific steps were taken, relevant NYPD documents would be destroyed.” Id.
The Court further explained that 1) the City made no effort to preserve text messages between police officers; and 2) the NYPD had no policy on preserving text messages. Stinson, at *6.
The City of New York produced only a few documents from key players. Id. Moreover, no emails were produced from the former Commissioner, the former Chief of the department, and three other key custodians. In all, the Court noted a total of fewer than 25 emails produced from key players. Stinson, at *7. The City took the position that the “Police Department on the whole did not operate via email.” Stinson, at *8. This assertion was contradicted by emails the Plaintiff acquired from third parties. Id.
The Court found that the City’s litigation hold was both late and ineffective. Moreover, the fact relevant emails were found, demonstrated that relevant emails were also deleted. Id.
Judge Robert Sweet granted the Plaintiff’s motion for sanctions. The Court applied the elements from Chin v. Port Authority in proving sanctions that:
1) That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
2) That the records were destroyed with a culpable state of mind; and
3) That the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
Stinson, at *8.
The Court found that the duty to preserve was the date of an earlier lawsuit involving quota-related allegations that was “strikingly similar” to the instant case, which was January 31, 2008, opposed to the date of the current lawsuit, filed on May 25, 2010. Stinson, at *10-11, referencing Floyd v. City of New York, 283 F.R.D. 153, 164-66 (S.D.N.Y. 2012).
The parties further battled over the scope of the duty to preserve. While it is unreasonable for any organization to have an indefinite litigation hold, the City could not argue there was any justification in failing to enact a litigation hold for three years. Stinson, at *12. The City further argued that since the Plaintiff’s had overly broad discovery requests, they should not be sanctioned for failing to preserve relevant ESI. Id. The Court rejected this argument, stating:
…[T]he reasonableness or unreasonableness of one party’s demands does not determine the scope of the other party’s obligation to preserve documents. The Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.
///
The Plaintiffs’ putative overbroad demands do not excuse the City’s failure to issue a litigation hold, to properly supervise its implementation, or to suspend document retention policies that would foreseeably lead to the spoliation of evidence.
Stinson, at *12-13.
Life lesson: Just because the Plaintiff has overly broad scope for discovery requests, does not justify the lack of a litigation hold.
The Court held that the City’s conduct warranted a finding of gross negligence in its failure to issue a litigation hold. Stinson, at *16. The Court explained that finding gross negligence is “more art than science” due to the lack of a clear standard:
Neither negligence or gross negligence has been clearly defined in the context of discovery misconduct, such as spoliation. These terms simply describe a continuum. Conduct is either acceptable or unacceptable. Once it is unacceptable the only question is how bad is the conduct. That said, it is well established that negligence involves unreasonable conduct in that it creates a risk of harm to others.
Stinson, at *16 [Citations omitted].
The Court held the following factors amounted to gross negligence: 1) failure to issue a litigation hold; 2) failure to implement the hold after it was issued with poor communications and the destruction of evidence; and 3) failure to circulate the hold and ensure compliance. Stinson, at *17-18.
Judge Sweet drove home the point the NYPD knew document destruction was foreseeable from their retention policy:
The NYPD cannot credibly argue that, despite setting guidelines for document destruction and providing an industrial shredding truck for that purpose, it did not know or intend that documents would be destroyed. Similarly, Lieutenant Scott’s Rule 30(b)(6) testimony amounts to an admission that the Department knew that officers’ email inboxes would hit their space limits – and that those officers would delete potentially relevant ESI when they did. Although the paucity of relevant emails produced from the inboxes of key decision makers does not establish that ESI was deleted, it is consistent with such spoliation and with Lieutenant Scott’s acknowledgement that deletion of emails was a foreseeable consequence of the NYPD’s storage policy.
Stinson, at *19.
The Court further held that the evidence lost was relevant to the Plaintiff’s claims from the handful of emails that were produced from a third party and other discovery. Stinson, at *20-21.
The Court had to craft a proportional adverse inference instruction based on the City’s conduct. As one would expect, the Plaintiff sought nuclear sanctions that would make them prevail on hotly contested disputes in the case. Stinson, at *22. As the Court explained, the Plaintiff was entitled to “an inference that helpful evidence may have been lost, not relief from their obligation to prove their case.” Id.
The Court sanctioned the Defendants with a “permissive inference” instead of a “mandatory adverse inference.” Id. Judge Sweet explained:
A permissive inference will ensure that the City faces consequences for its failure to take its preservation obligations seriously, but will not result in an unwarranted windfall for the Plaintiffs. The jury will be instructed that the absence of documentary evidence does not in this case establish the absence of a summons quota policy.
Stinson, at *23.
Bow Tie Thoughts
Large organizations often get trapped in the “fog of war” with litigation holds. Failed communications, not monitoring for compliance, or not issuing a hold can result in catastrophic results.
This case did not apply the new Federal Rule of Civil Procedure Rule 37(e), because the motion was submitted prior to the December 1, 2015, the day the Rule went into effect. Stinson, at *14-15, footnote 5. The Court held it would not be “just and practicable” to retroactively apply the Rule. Id. The new Rule 37(e) states:
Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
USCS Fed Rules Civ Proc R 37(e).
It will be very interesting to see the first case that applies Rule 37(e). Time will tell how quickly that day comes. While the factual analysis will likely remain the same, the sanctions analysis should be less art and more science.
The duty to preserve is a tricky beast. Determining when a party “knew or should have known that litigation was imminent” is often a free fall into analyzing the facts of when a party had notice of a lawsuit.
There are times when it is very obvious that a party should have ejected and pulled the ripcord on not destroying any evidenced. This is one of those times.
The Plaintiff in the case was injured in a skydiving accident. The Defendant sent the parachute in the accident from Oklahoma to England prior to the Plaintiff bringing her lawsuit and propounding discovery that sought the inspection of the parachute. Wethington v. Swainson (W.D.Okla. Dec. 23, 2015, No. CIV-14-899-D) 2015 U.S. Dist. LEXIS 171126, at *2.
The Plaintiff brought a motion seeking sanctions, ranging from default judgment to adverse inference instructions. However, this case did not have a crash landing for the Defendant. The Court noted that the Defendant was pro se and should have been aware of the relevance of the parachute. Wethington, at *4. That being said, the Court found that issuing nuclear sanctions were currently inappropriate, but would award the Plaintiff’s attorney fees incurred for the discovery motion. Wethington, at *5.
The Defendant effectively had an emergency chute to avoid sanctions, because the Defendant could produce the parachute for inspection. Id. As such, the Court ordered the inspection of the parachute at the Defendant’s cost, subject to any protocols the parties agreed to, such as a licensed parachute rigger supervising the inspection. Wethington, at *5-6.
Bow Tie Thoughts
The triggering event for the duty to preserve electronically stored evidence is not always as clear as an accident. A retail store where someone has a slip and fall, or auto accident with a shipping service, are all clear lines in the sand to start preserving evidence. Threat of a lawsuit in business is another matter.
Consider situations where individuals who are producing a crowdfunded fan fiction movie are sued by the movie studio that owns the rights to the subject property. Was the triggering event when the first emails were sent discussing the production of the fan film? Was it when the producers first expressed concern they could be sued? Is there any event prior to the filing of a lawsuit that could have triggered the duty to preserve evidence?
The answer is “it depends” on the facts. Few cases are as clear-cut as a skydiving accident and require thoughtful analysis of when someone “knew or should have known that litigation was imminent.” The next steps of identifying the scope of preservation are also complicated, but necessary to ensure a party is reasonably meeting their duty to preserve relevant evidence.
The new Federal Rules of Civil Procedure are not as exciting as Star Wars The Force Awakens, but there differently has been an awakening on proportionality. There are those who fear eDiscovery, thus feel the new Rule 26 empowers them to object to every request for production on the grounds the request is not proportional to the merits of the case. Such thinking leads to the Dark Side. The new Rules are designed to bring balance to litigation, not leave it in tatters.
In a products liability and breach of warranty case involving evaporator coils and condenser coils in air conditioners, the Defendants as the Producing Party claimed producing responsive documents to the Plaintiffs’ request would be unduly burdensome. The Defendants claimed it would take “4,000 hours of lawyer review time over several months” to identify responsive discovery. Siriano v. Goodman Mfg. Co., L.P. (S.D.Ohio Dec. 9, 2015, No. 2:14-cv-1131) 2015 U.S. Dist. LEXIS 165040, at *15.
Magistrate Judge Elizabeth A. Preston Deavers engaged in very thoughtful analysis of Federal Rule of Civil Procedure 26(b)(1)’s new emphasis on proportionality in granting the Plaintiffs’ motion to compel, in part. As a preliminary matter, discovery is available “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).” Siriano, at *15.
Judge Deavers recounted the proportionality principles of former Fed. R. Civ. P. 26(b)(2)(C)(iii)), now Fed. R. Civ. P. 26(b)(1), that District Courts are to limit discovery where the “burden or expense . . . outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.” Siriano, at *15-16.
As the Court noted, “restoring proportionality” was the “touchstone of revised Rule 26(b)(1)’s scope of discovery provisions” with the move of proportionality from Fed. R. Civ. P. 26(b)(2)(C)(iii)) to Fed. R. Civ. P. 26(b)(1). Siriano, at *16.
The Court’s analysis is very thoughtful, finding:
Siriano, at *16-19.
Harkening back to Yoda’s “size matters not,” just because something is expensive or time-consuming, does not mean it is unduly burdensome. Siriano, at *19.
The Defendants did not offer any alternative means of identifying or producing electronically stored information. Judge Deavers could have stated, “that is why you fail,” but instead wielded the new Federal Rule of Civil Procedure 1 like a lightsaber, hitting the Defendant with the fact that the “just, speedy, and inexpensive determination of every action and proceeding” is to be employed by not just the Court, but the parties under the new Rule 1. Siriano, at *19.
Under the new Rules, cooperation strikes back. Moreover, coupled with the return of proportionality, the new Rules contemplate “active judicial case management.” Siriano, at *19. Thus with the resolve to go to Dagobah, the Court ordered a discovery conference to discuss possibly conducting discovery in phases. Id. Finally, the parties were also directed to “engage in further cooperative dialogue in an effort to come to an agreement regarding proportional discovery.” Siriano, at *20.
Bow Tie Thoughts
eDiscovery might not be as popcorn worthy as Star Wars, but this is an excellent case applying the 2015 Amendments to the Federal Rules of Civil Procedure. The proportionality analysis is thoughtful in getting to the merits of the case. Judge Elizabeth A. Preston Deavers sets a great benchmark for others to follow in determining proportional discovery in cases.
I have met lawyers who have a crazy idea: They HAVE to read EVERY email, document, Excel file, video, and every other bit of ESI produced in discovery.
That position is wrong. Lawyers have a duty of competency to their client, and candor to the court, to look at what is relevant to their case and responsive to discovery requests. This can be accomplished using one of the many eDiscovery review applications, leveraging search terms, advanced analytics, time lines, predictive coding, and knowing the scope of discovery.
This issue was highlighted in a criminal case where the government produced over 1.9 million pages of discovery, plus 49 audio recordings, and two videos. United States v. Pomrenke, 2015 U.S. Dist. LEXIS 165287, *1. Defense counsel sought a six-month continuance.
They got a six-week one instead.
Defense counsel argued that they had an ethical obligation to “review every document produced by the government to determine its relevance or lack thereof.” Their estimated time for three lawyers working around the clock would take more than a year to complete. Pomrenke, at *4.
The Court did not buy the argument. Judge James P. Jones stated:
I believe that many of the produced documents can be reviewed very quickly. Counsel for the defendants can use e-discovery software to aid in their review and can enlist the assistance of additional attorneys if necessary. In addition to the three attorneys of record, the defense team also includes an investigator. Moreover, the defendant’s husband is legally trained. Although he is not counsel of record in this case, I previously affirmed an order of the magistrate judge allowing the defendant to disclose the discovery materials to her husband, anticipating that he would assist with trial preparation.
Pomrenke, at *5.
The Court granted a six-week continuance, which was “adequate time for the defense to prepare for trial while still serving the interest of the public and the defendant in having this case promptly concluded.” Pomrenke, at *5-6.
Bow Tie Thoughts
Relevancy review does not require eyes on every document. Determining the case story lawyers want to tell the jury focuses review to find that information. Moreover, jury instructions are highly effective in structuring document review to find what is relevant.
Attorneys can focus the scope of discovery to the key players in the case. From there, searches can be further refined based on time frames, and subject matter to search for in the database.
“Predictive Coding” is also extremely effective in such cases. While different software applications vary, the general theme is the software learns from review to identify what is relevant and what is irrelevant.
One way to help train Predictive Coding on what is irrelevant, is to search for substantive information not relevant to the case. For example, if you have a construction defect case and every project the contractor worked on was added to the database (overly broad collections happen and not everyone removes such data in processing), code the irrelevant projects as such (and ultimately have them removed from the database to reduce costs). Other methods are to search and tag emails from newsletters and advertisements as irrelevant. There are other methods as well to help identify irrelevant information, so these are just examples.
Conducting faceted searches layered with data identified from Predictive Coding is also a very effective way to zero in on responsive information. Searches are run over the possibly relevant information, thus any review is focused and helps train the system for what could be relevant to the case.
There are many ways to identify relevant electronically stored information that further Federal Rule of Civil Procedure Rule 1 and proportionality. None of these methods should require a brute force manual review of each individual record, because no one should have to spend years on document review.
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