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.

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 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.

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.

Search Term Fights Over Proportionality

Attorneys have been fighting over search terms for years. Many times this fight is without expert advice, search efficiency reports, or any evidence to support arguments for or against proportionality.

I also think fighting over “search terms” is actually the wrong fight. The focus should be on search concepts and leveraging advanced analytics to identify relevant ESI.

Take the recent whistle blower case of Lutzeier v. Citigroup Inc. The Plaintiff sought an order to compel additional searches with the following terms:

(1) “Executive training” and/or “leadership development training program”; 

(2) “PEP” and/or “program expenditure proposal” and/or “internal control”,

(3) “OCC,” “office of comptroller of currency,” “FRB,” “federal reserve board,” and/or “consent order”;

(4) “Insufficient assurance”; and

(5) “Whistleblower,” “retaliate,” “retaliation,” “SOX,” “Sarbanes Oxley,” and/or “Dodd Frank.”

Lutzeier v. Citigroup Inc., 2015 U.S. Dist. LEXIS 11727, 20-21 (E.D. Mo. Feb. 2, 2015).

The Defendant argued that the search terms were “so common and generic” that the results would include a “significant volume of irrelevant documents that it is not sufficient to justify the additional burden.” Lutzeier, at *21. To be fair to the Defendant, they had a strong argument that on their face the Plaintiff’s search terms look broad.

The Defendant argued that the search terms for “Fred,” “Lutzeier,” “LOIS,” “COSMOS,” and “Champney” would produce the relevant ESI. Moreover, adding the proposed terms would add an additional 555,909 files, therefore the burden “greatly outweighs the likelihood that these searches will yield additional documents not already captured by Defendants’ search protocol.” Lutzeier at *21, citing Fed.R.Civ.P. 26(b)(2)(C)(iii)).

The Court agreed with the Defendants that the search terms were generic, excepted at the search term “consent order.” As such, the Court denied the Plaintiff’s request for additional searches, with the exception of one additional search term. Lutzeier at *21-22.

I do not like second guessing Courts, but I really do not like this result. We have many types of advance analytics for searching that go far beyond “search terms.” We can see communication patterns; identify date ranges; and key players making relevant communications. Moreover, the issue of finding responsive information is not one of “search terms,” but of “search concepts.” What sort of information supports a party’s claims or defense? What is relevant to that case? This goes beyond determining specific words to use, but specific concepts to find relevant ESI.

One of the challenges I see from discussing eDiscovery with litigators, is that many lawyers think that because they can perform legal research that they are competent to conduct advance searches of electronically stored information. While a podiatrist is competent to treat an ingrown toenail, that doctor is not competent to perform brain surgery (and the brain surgeon is not the right doctor to perform surgery on a broken ankle). Each is an expert in their respective fields. The same applies to lawyers and eDiscovery experts.

My friends who are eDiscovery experts would have suggestions on the Plaintiff’s search terms and counter arguments to the Defense objections (after sufficient education on the facts of the case). I’d wager they would develop search strings to narrow the Plaintiff’s search terms based on the Defendant’s search terms.

Maybe the parties had expert reports supporting their positions, but I cannot tell from the Court order (the fact the Defendant had an exact count of ESI files shows a factual argument was made to the Court, perhaps based on a search efficiency report). Regardless, there are ways to leverage the technology we have to find relevant and responsive ESI. I believe other options could have been used in this case, but would need more information to recommend a strategy.

Stapling Proportionality

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

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.

What Did We Learn About eDiscovery in 2014?

As 2014 draws to a close, it is time to reflect on the cases from this year in eDiscovery. One of the biggest trends I took away from caselaw in 2014, is that more Judges have a greater understanding of eDiscovery, resulting in practical opinions.

Here are the practice areas I found to be the most interesting in 2014, which can be heard in full on my 2014 eDiscovery Year in Review on iTunes or Buzzsprout (Presented by Paragon):

Application of Proportionality Analysis

Judges Questioning Why The Court Was Asked Permission to Use Predictive Coding

We still have Form of Production issues eight years after the 2006 eDiscovery Amendments to the Federal Rules of Civil Procedure

The Importance of Documenting Services for Taxation of Costs

What will 2015 hold for us in the world of electronic discovery? I think we will see proportionality analysis focus on the value of the information sought in relation to the case and not solely just the cost of the discovery. Parties will have to explain how the information is useful, such as how it relates to a claim, opposed to merely saying, “It is expensive.” This will require counsel to focus on the merits of the case and how the requested discovery will help advance the litigation.

I personally hope litigants stop asking Judges for permission to use predictive coding. No one asks, “Can I de-dup the data? Is it ok to use clustering? May I please use conceptual search in addition to keywords?”

The issue with all productions is whether or not the production is adequate. In my view, parties going to war over predictive coding as a means to review electronically stored information is asking the Court to issue an advisory opinion. The time to fight is when the there actually is a dispute because a production is lacking, instead of engaging in arguments of how much a human being can read in an hour compared to a computer algorism.

To learn more on the issues from the past year, please check out my 2014 eDiscovery Year in Review audio podcast on iTunes or Buzzsprout.

I want to thank Paragon for sponsoring the 2014 eDiscovery Year in Review. Please check out their website and recent blog post on the Convergence of eDiscovery and Information Security to learn more about their services.