Proportionality in Asymmetrical Discovery

The Plaintiffs and Defendants in a SEC case highlight the importance of proportionality between asymmetrical parties. In such cases, one side has all of the electronically stored information for discovery requests; the other side does all the requesting. However, the smaller party can have an extremely high burden reviewing any produced ESI, especially if searchable features have been removed.

Magistrate Judge Leda Dunn Wettre in City of Sterling Heights Gen. Emples. Ret. Sys. v. Prudential Fin., (an opinion not for publication) did a great job balancing the proportionality interests between a motion to add additional search terms and custodians to the dispute.

Balancing Custodians

The Plaintiffs sough to add between 22 to 45 additional custodians for the Defendants to add to their discovery search. The Requesting Party made a strong argument for the additional custodians, including a chart of the custodians with the factual basis for expanding the scope of discovery. The parties had already agreed to 66 custodians. City of Sterling Heights Gen. Emples. Ret. Sys. v. Prudential Fin., 2015 U.S. Dist. LEXIS 110712, *4-5; 8.

The Court denied adding the majority of the additional custodians, explaining, Neither plaintiffs nor the Court can know with certainty, of course, whether searches of the additional custodians’ ESI will yield unique, noncumulative documents.” Sterling Heights, at *9. The Court further explained that it was satisfied that the vast majority of the custodians likely had duplicate information. Id.

Judge Wettre drove home her proportionality analysis with the following: the Court is cognizant of the sizeable costs to Prudential involved in the searching, review and production of information from each additional custodian. Although Prudential is a large corporation with substantial resources, the Court should not be – and is not-insensitive to these costs.” Id.

The Court found that the Plaintiffs had provided enough information that there was a “fair inference” that there could be more custodians with additional information. Id. Judge Wettre explained in terms of proportionality that:

Although the number of agreed custodians is already substantial, the resources and personnel at Prudential devoted to the Verus audit and related issues also seem to have been immense. Therefore, it is not surprising that more than 66 Prudential employees may have been heavily involved in the issues relating to this case and may thus have relevant, noncumulative information. Moreover, allowing plaintiffs a moderate number of additional custodians does not seem disproportionate to the size and scale of this action. The Court understands that there are electronic de-duping tools that may be utilized to limit defendants’ review and production of duplicative documents, reducing some of the burden on Prudential of producing information from additional custodians.

Sterling Heights, at *10.

The Court explained that permitting the plaintiffs to select an additional 10 custodians “would balance fairly plaintiffs’ rights to relevant discovery against the costs and burden to defendants of providing that discovery.” Sterling Heights, at *10-11.

Search Terms

The question of adding four new search terms was decided swiftly. The Defendants challenged adding more search terms, claiming they had already produced 1.5 million pages of discovery. Sterling Heights, at *11. The Plaintiffs responded that over half of the 1.5 million pages were “completely unusable redacted pdfs of Excel spreadsheets.” Id.

The Court held that the four search terms appeared designed to target relevant information. Moreover, the Plaintiff noted that if the Defendant had produced a hit count that showed the terms had an “egregiously large” number of “hits,” the Plaintiffs would have considered narrowing the terms. Id.

Judge Wettre allowed the additional terms and explained:

The Court does not have before it information on which it is persuaded that it should deny these four additional terms because they would produce an unduly large number of results likely to be irrelevant to this case. While the Court does recognize that defendant has agreed to a large number of search terms, that is not sufficient basis in and of itself to deny plaintiffs the four additional search terms they seek.

Sterling Heights, at *12.

Bow Tie Thoughts

If proportionality cases were rock concerts, this case has a few “gavel drop” moments. It is great to see a Judge who incorporated proportionality throughout the entire opinion.

Proportionality arguments should not be made out of thin air. The Plaintiffs made a noble effort providing a chart with each additional custodian explaining the factual basis for expanding the scope of discovery for each individual. While they only got 10 additional custodians, this was an excellent way to explain to a Court the value of adding custodians to decide the merits of a case.

The search term arguments for both parties could have been stronger if the proposed search terms were supported by affidavits from expert witnesses. To be fair, the arguments might have been, but the tone of the opinion sounds like the arguments did not include expert affidavits. There are many lawyers who think that because they can conduct case law research that “search terms” in discovery are the same thing. That is a dangerous assumption.

I strongly encourage lawyers to work with eDiscovery consultants to help identify the concepts to identify electronically stored information. Advanced analytics from clustering of similar files to email threading, to visual analytics, to predictive coding all can help identify responsive files. Lawyers should think beyond “search terms” to concepts in order to search discovery.

Finally, I feel greatly for the Plaintiffs who had to review non-searchable PDF’s of Excel files. There are ways to redact Excel files that would require agreements between the parties, but it can be done. This would keep Excel files in native format and avoid spreadsheets exploding into multiple page nightmares.

In closing, a hat tip to the Judge and both parties on their well argued positions and the opinion.

 

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