The Proportional Request for Production

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.

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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.

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Proportionality in Email Searches

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.

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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.

Proportionality is like The Force

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.

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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:

  • The discovery sought by the Plaintiff was directly related to their claims for design and manufacture defects;
  • It is highly unlikely that Plaintiffs could discover similar information from another source or in another manner;
  • Documents pertaining to breach of warranty by other customers would be easily accessible to Defendants but likely inaccessible to Plaintiffs;
  • It is more efficient for Defendants to provide information on their distributors, then the Plaintiffs construct it piecemeal with third-party request;
  • Defendants expended relatively little in complying with discovery, because the information sought had been produced in related cases; and
  • Plaintiffs in their Complaint present a putative class action that could include a significant number of class members who each purchased costly products from Defendants.

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.

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.

 

Always Explain How Requested Information Moves a Case Forward for Proportionality

A requesting party issued a third party subpoena on the ATF for email messages created between 2000 to 2009. The Court denied the production of the messages on the grounds the emails were not reasonably accessible because of being stored on back-up tapes. The moving party also failed to demonstrate good cause to order the production of the requested information. The Court also addressed the proportionality of the request under Federal Rule of Civil Procedure Rule Rule 26(b)(2)(C). Baranski v. United States, 2015 U.S. Dist. LEXIS 71584, *52-54 (E.D. Mo. June 3, 2015).

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The Court began the proportionality analysis highlighting the emails were between six to eight years old and stored on back-up tapes for disaster recovery. Baranski, at *52.

The Court further noted that the production of the emails would “involve substantial costs and time and the active intervention of computer specialists,” which had been explained by expert affidavit. Id.

An added factor included that the emails would have to be searched by specific users and the requesting party had not identified any users to be searched. Id. This made the discovery request not sufficiently specific. Baranski, at *53.

The Court further drove home the proportionality analysis that the cost could not be justified for the requested information without some showing that the requested emails contained information to resolve the issues in the lawsuit. Id. As such, the Court denied the requesting party’s subpoena.

Bow Tie Thoughts

Proportionality is the balancing of two factors: 1) What must be done to make the data accessible (including cost, time on the project, what technology must be used) and 2) How is the information going to be beneficial to the case.

Cost is irrelevant if the information has not objective value to a lawsuit. A party seeking information that especially requires translation into a reasonably useable form should be ready to state why it supports the causes of action in a case, with specific custodians, time frames, and any other information to assist the Judge in making her ruling. Without knowing how the information will move the case forward, a Court will be hard pressed to order expensive data recovery procedures.

Hard to Decide Discovery Disputes on Proportionality if No One Knows the Value of the Case

Magistrate Judge Paul Grewal ordered the supplemental production of damages information in a patent case based on proportionality and supplemental disclosures. Corning Optical Communs. Wireless v. Solid, Inc., 2015 U.S. Dist. LEXIS 49069, 5-8 (N.D. Cal. April 14, 2015). This is a unique argument that makes a lot of sense: How can the Court decide discovery issues without knowing the value of a lawsuit?

Judge Grewal highlighted a common occurrence in patent infringement litigation: Neither party can say how much the case is worth. Corning, at *2.

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Parties are required to give some damages-related information as part of their Rule 26(a) initial disclosures. The Plaintiff in the current case stated for this required disclosure: “No documents related to this calculation exist at this time.” Corning, at *7.

Judge Grewal looked to a quote from Judge Alsup on this issue in patent cases:

Only to the extent that, and only for so long as, the patent plaintiff is unable, despite its Rule 11 obligations, to fully satisfy the Rule 26(a) disclosure requirement, a patent plaintiff is temporarily excused from disclosing a shortfall in information (but it must disclose the rest at the outset). The burden is on the patent plaintiff to explain in its Rule 26 initial disclosures the extent of any such disability and the reason therefor. This must be specific—such as, by way of hypothetical example, ‘despite a diligent pre-suit investigation plaintiff has been unable to learn even an approximation of the extent of sales of the accused product and will seek this data in discovery.’ Again, that some material is as yet unknown does not excuse nondisclosure of what is or should be known. Plaintiff is not required to do the impossible but is required to do the best it can. Just because some items cannot yet be disclosed does not mean that nothing should be disclosed. If the Court later determines that the disclosure should have and could have reasonably been more complete, then, to that extent, preclusion or other sanctions may well be required.

Corning, at *4, citing Brandywine Communs. Techs., LLC v. Cisco Sys., 2012 U.S. Dist. LEXIS 162165, 3 (N.D. Cal. Nov. 13, 2012).

The Defendants in the current case propounded an interrogatory for the Plaintiff to state their “theory of damages, apportionment among the Defendants, the method used to calculate damages including without limitation whether the calculation is based on lost profits, reasonable royalty, or some other measure of damages,” and issues of prejudgment interest. Corning, at *5.

The Court held that the Plaintiff’s response to wait for their expert report was “plainly insufficient.” Corning, at *6-7. The Court explained it needed to know what the case was worth in order to resolve discovery disputes. As the Court summed up: “Proportionality is part and parcel of just about every discovery dispute.” Corning, at *7.

The Court cited to Rule 26(e)’s requirement to supplement initial disclosures based on new information learned in the course of discovery. Id. As such, the Court ordered the Plaintiff to supplement its Rule 26(a)(1)(A)(iii) damages-related disclosures by April 30 (16 days from the date of the order). Id. The Plaintiff was also required to answer the Defendant’s interrogatory, including:

The amount of damages Plaintiff seeks under each of its asserted damages theories (including lost profits, reasonable royalty, interest and any other asserted theory); 

Plaintiff’s apportionment of damages between Defendants and each asserted patent; 

For each asserted patent, the time period of which Plaintiff seeks damages as a result of the alleged infringement;

To the extent Plaintiff seeks to recover both lost profits and a reasonable royalty, the theory under which it claims such recovery is appropriate;

The witnesses on which Plaintiff intends to rely to support its damages claim;

The documents on which Plaintiff intends to rely to support its damages claim;

To the extent Plaintiff claims that it lost profits as a result of the alleged infringement, the facts on which Plaintiff bases its claim, including the identity and amount of

Plaintiff’s products on which Plaintiff claims to have lost profits; and

To the extent Plaintiff seeks to recover a reasonable royalty, the facts on which Plaintiff bases its claim, including the date of the hypothetical negotiation, any allegedly comparable licenses, the term of the reasonable royalty sought and any other Georgia-Pacific factors on which Plaintiff intends to rely.

Corning, at *7-8.

Bow Tie Thoughts

Proportionality is the key to resolving discovery disputes. I am not a patent litigator, but it is shocking to have litigation where parties cannot give a basic value of damages. Granted, patent litigation is highly complex and specialized. Moreover, computing complex damages is the territory of experts. However, if a case has multiple powerhouse law firms with teams of lawyers billing away, one would hope damage-related disclosures are made earlier in the case, opposed to later.

Stapling Proportionality

Proportionality and costs are not a great argument when you are complaining about your own databases.

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Webb v. Ethicon Endo-Surgery, Inc., is a product liability case over a surgical stapler that misfired during a surgery, resulting in complications to the Plaintiff’s recovery. Webb v. Ethicon Endo-Surgery, Inc., 2015 U.S. Dist. LEXIS 8275, 2-3 (D. Minn. Jan. 26, 2015). The Magistrate Judge attempted surgery on the scope of discovery, resulting in the Defendant arguing the scope was too broad, and the Plaintiff arguing it was too narrow, over three specific discovery requests. The District Court upheld the Magistrate Judge’s order on the scope of discovery.

The Defendant offered a declaration from their risk manager to support their argument to narrow discovery based on proportionality. The Defendant argued that they had made the line of medical staplers for 18 years and the records were stored in multiple databases. Webb, at *14-15.

The Defendant further argued that it would cost $62,400 to search the multiple databases, which was disproportional to the Plaintiff’s damages “in excess” of $50,000. Webb, at *16. This argument failed.

The Court cited that the producing party has the burden of complying with discovery requests and “a corporation [that] has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Webb, at *16-17, quoting Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) and citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).

The Court held that the Magistrate Judge properly determined the scope of discovery in evaluating the expense, burden, and likely benefit of the information sought for the subject discovery requests. Webb, at *17.

Bow Tie Thoughts

Searching databases is expensive. Many judges do not care for arguments from a producing party that searching multiple, or even dissimilar, databases make the cost of relevant discovery prohibitively expensive. This is like arguing a party should be protected from its own self-inflicted wound on how they manage different databases.

Technology is constantly improving, thus methods of storing data change over time. If a company maintains electronically stored information going back potentially decades, they should be prepared have the ability to search it in litigation in a cost effective manner.