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Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Texas Supreme Court Denies Request for Mandamus Relief without Prejudice Over Native File Production: eDiscovery Case Law

In the case In Re State Farm Lloyds, Relator, Nos. 15-0903, 15-0905 (Tex. Sup. Ct. May 26, 2017), the Texas Supreme Court, in an opinion delivered by Justice Eva M. Guzman, denied the petitions for writ of mandamus without prejudice, “affording the relator an opportunity to reurge its discovery objections” (regarding the requesting party’s request for a native file production) to the trial court in light of its opinion.

Case Background

In this case which involved a homeowner’s insurance claim after hail storm damage, the parties met repeatedly and unsuccessfully to attempt to negotiate a protocol for the production of ESI, with format of production being among the primary issues as the requesting party (the homeowners) requested native file production from the producing party (State Farm) in this case.  The trial court held an evidentiary hearing on the discovery issues, after which it granted the motion to compel native production of the ESI.  The court of appeals denied mandamus relief (we covered that ruling here), which led to State Farm’s appeal to the Texas Supreme Court.

Court Opinion

In the opinion delivered by Justice Guzman, the Court noted that “Under our discovery rules, neither party may dictate the form of electronic discovery. The requesting party must specify the desired form of production, but all discovery is subject to the proportionality overlay embedded in our discovery rules and inherent in the reasonableness standard to which our electronic-discovery rule is tethered.”

State Farm’s position was that it processes more than 35,000 new claims each day and, in the ordinary course of business, information related to those claims is routinely converted into static format and uploaded to its Enterprise Claims System (ECS), “the system of record” for claims handling at State Farm.  Its expert contended that ESI in “static format is easier to Bates number for discovery; allows efficient management of documents as exhibits at depositions, hearings, and trials; enables redaction, which is not possible with most native forms of ESI; and avoids intentional or unintentional alteration of the information, which may be difficult to detect or propagate further disputes about data integrity”.  The expert claimed that production in native form “would require State Farm to engineer a new process that includes determining upstream sources of the data, validating the upstream sources, determining whether native files of the information still exist, and developing an extraction method for the native versions.”  The expert did not quantify the time or expense involved, but claimed that “[t]hese additional steps would be an extraordinary and burdensome undertaking for State Farm” and are unnecessary because State Farm’s proffered production form is “reasonably usable.”

In asserting that searchable static format is not a “reasonably usable form,” the homeowners supported their proposed electronic discovery protocol with expert testimony that static images have less utility compared to native format, which would allow them to see formulas in Excel spreadsheets, search and sort the information by data fields, analyze the relationship of data, and see information in color that may not translate as accurately to stored or printed static images. Referring to static-form production as “the electronic equivalent of a print out,” the homeowner’s expert explained that useful metadata would not be viewable in static form, including tracked changes and commenting in Word documents; animations, other dynamic information, and speaker notes in static printouts of PowerPoint documents; and threading information in emails that would allow construction of a reasonable timeline related to State Farm’s processing of the homeowners’ claims.  Summarizing the homeowners’ position, the expert explained, “[W]e’re not imposing any additional duties, we’re only asking that they not be allowed to dumb down, to downgrade the data for production.”

The Court’s opinion noted that “Whether production of metadata-accessible forms is required on demand engages the interplay between the discovery limits in Rule 192.4 and production of electronic discovery under Rule 196.4” and also stated that “When a reasonably usable form is readily available in the ordinary course of business, the trial court must assess whether any enhanced burden or expense associated with a requested form is justified when weighed against the proportional needs of the case.” 

The Court also discussed the following seven factors when considering proportionality of the request: 1. Likely benefit of the requested discovery, 2. The needs of the case, 3. The amount in controversy, 4. The parties’ resources, 5. Importance of the issues at stake in the litigation, 6. The importance of the proposed discovery in resolving the litigation and 7. Any other articulable factor bearing on proportionality.  The Court also considered parity with Rule 34 of the Federal Rules of Civil Procedure and noted that “Rule 34’s plain language does not permit either party to unilaterally dictate the form of production for ESI.”

The Court concluded by stating:

“Today, we elucidate the guiding principles informing the exercise of discretion over electronic-discovery disputes, emphasizing that proportionality is the polestar. In doing so, we further a guiding tenet of the Texas Rules of Civil Procedure: that litigants achieve a ‘just, fair, equitable and impartial adjudication . . . with as great expedition and dispatch and at the least expense . . . as may be practicable.’ Because the trial court and the parties lacked the benefit of our views on the matter, neither granting nor denying mandamus relief on the merits is appropriate. Accordingly, we deny the request for mandamus relief without prejudice to allow the relator to seek reconsideration by the trial court in light of this opinion.”

So, what do you think?  Do you agree with State Farm’s arguments that producing native format ESI would be “extraordinary and burdensome” and that its proposed production form is “reasonably usable.”?  Please share any comments you might have or if you’d like to know more about a particular topic.

One footnote (literally): This opinion actually cited one of our blog posts in the footnotes, when discussing the relevance of metadata to the request – this post regarding how metadata played a key role in a $10.8 million whistleblower lawsuit verdict.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests: eDiscovery Case Law

In Wal-Mart Stores, Inc. et. al. v. Texas Alcoholic Beverages Commission, et. al., No. 15-00134 (W.D. Texas, Apr. 10, 2017), Texas Magistrate Judge Andrew W. Austin (no relation) denied the defendant’s motion to overrule the plaintiff’s objections to the defendant’s discovery requests, due to the fact that the plaintiff stated it was withholding documents based on each of the objections.

Case Background

In this dispute over the restriction of public companies to sell liquor in Texas, Judge Austin, after conducting a hearing to discuss the parties’ discovery dispute, noted “There was quite a bit of confusion at the hearing about precisely what relief TPSA is requesting in this motion.”  Ultimately, it was determined that the defendant was requesting the Court to overrule objections made by the plaintiff to each of the requests for production, which it assumed would mean that the plaintiff would be under “compulsion” to produce responsive documents, and any disagreements about the actual production could be addressed at that time.

Judge Austin also noted that the “cause of the confusion is not one-sided”, in that much of the confusion stemmed from the plaintiff’s “overabundance of caution” in responding under the new discovery rules, which now require that when a party makes an objection, it also state whether it is withholding any documents subject to that objection. In every one of its responses to the defendant’s requests, the plaintiff leveled one or more objection, and in each instance it stated that it is withholding documents pursuant to that objection.  As a result, the defendant was concerned that there were identified, responsive documents sitting on plaintiff’s counsel’s desk that had not been produced, any of which could be a “bombshell.”

In an exchange with plaintiff’s counsel for clarification, Judge Austin determined that the plaintiff had indicated it was withholding documents pursuant to each objection even if the plaintiff determined that the request was too broad and of such marginal relevance to even merit a search to find responsive documents and that the plaintiff expected it was likely that there were some responsive documents in its many offices and on its computer networks and that some of these documents would likely be privileged attorney client communications or work product.

Judge’s Ruling

With regard to the plaintiff’s statement that it was “withholding documents based on these objections”, Judge Austin noted that while it “may technically be accurate, it is not what the new rules were after in adding the requirement in Rule 34(b)(2)(C) that ‘an objection must state whether any responsive materials are being withheld on the basis of the objection.’”   Judge Austin indicated that “A more helpful response would have been something along the lines of ‘Based on these objections, Wal-Mart has not conducted a search for responsive documents, and while it is likely that some responsive documents may exist, Wal-Mart has not identified any such document, and is not withholding any identified document as a result of these objections.’”

Judge Austin also stated: “For most of the RFPs, Wal-Mart responded that it had already collected and produced documents in response to similar requests from the TABC, based on agreed upon search parameters, and would produce the same documents to TPSA. Further, Wal-Mart stated that it would conduct an additional limited search of additional document sources, but would otherwise not search further. TPSA failed to state in its briefs, or at the hearing, what it believed was deficient with this response. In fact, when asked at the hearing, TPSA was unable to point to a single additional document that would be responsive to its requests it believed had not already been produced. Despite this, TPSA continued to maintain that overruling Plaintiffs’ objections would solve this discovery dispute.”  Disagreeing, Judge Austin denied the defendant’s motion to compel.

So, what do you think?  Was the judge’s suggestion for handling objections in this case helpful?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Court Approves Defendant’s Proposed Random Sampling Production Plan: eDiscovery Case Law

In Duffy v. Lawrence Memorial Hospital, No. 14-2256 (D. Kansas, Mar. 31, 2017), Kansas Magistrate Judge Teresa J. James granted the Motion to Modify Discovery Order from the defendant (and counterclaimant), where it asked the Court to enter a protective order directing it to produce a random sampling of 252 patient records, along with five spares, in order to respond to the plaintiff/relator’s document requests.

Case Background

In this case, the plaintiff alleged that the defendant submitted false information to the government to maximize reimbursement for federal medical care programs; in turn, the defendant counterclaimed for breach of contract and fraud.  In a February 2017 order, the Court ordered the defendant to produce documents responsive to certain plaintiff requests in her Second Request for Production of Documents within 14 days.  Defendant produced the most of the requested documents, except for those associated with four requests that were the subject of an instant motion.

As the defendant conducted searches for documents responsive to these requests, it determined that 15,574 unique patient records would have to be located and gathered.  In an effort to calculate the time necessary to locate and produce the relevant patient records, the defendant’s Medical Records department obtained a sample of ten patient records and determined that it would take 30 minutes per record to process and review the records to respond to the four RFP requests.  As a result, the defendant estimated that it would take 7,787 worker hours to locate and produce responsive information for 15,574 patient records, at a cost of $196,933.23.  Redaction of patients’ personal confidential information would take another ten reviewers and one quality control attorney fourteen days at a cost of $37,259.50.  So, the total cost to produce information relevant to the RFPs was estimated to be over $230,000.

Given these costs, the defendant asked the Court to modify its order by limiting the required production to a random sampling of 252 patient records plus five spares, using a statistical tool known at RAT-STATS used by the Department of Health and Human Services Office of Inspector General to randomly select the patient records.  The plaintiff objected, claiming that the defendant did not attempt to meet and confer and also because the Court had already rejected the defendant’s previous contention of undue burden.  The plaintiff also argued that redaction was unnecessary because a protective order was in place to designate the patient info as confidential information.

Judge’s Ruling

With regard to the previous rejection of undue burden, Judge James stated: “Had Defendant presented such evidence in response to Plaintiff’s Motion to Compel, the Court may have found the requests at issue unduly burdensome and disproportional to the needs of the case. Contrary to Plaintiff’s assertion, Defendant did not waive its right to seek protection once the enormity of the task became apparent.”  As for the plaintiff’s objection that the defendant did not meet and confer beforehand, Judge James noted that the “parties conferred following Defendant’s objections to the discovery requests, and that was the point at which some meeting of the minds could have produced a different response by Defendant or an alteration of the discovery request by Plaintiff. At this point, however, Defendant is seeking relief from this Court’s order rather than from a party’s discovery request.”

As a result, Judge James stated: “The Court will modify its order (ECF No. 133) to direct Defendant to utilize RAT-STATS and produce a random sampling of 252 patient records, along with five spares, to respond to RFP Nos. 40, 41, 43 and 58.”  She also directed the defendant to use RAT-STATS (as requested) to randomly select the patient records to be produced and sided with the defendant to redact personal confidential information from the patient records that “Defendant has a legal duty to safeguard.”

So, what do you think?  Is random sampling an appropriate option for cases where production of a larger set may be an undue burden?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

SCOTUS Reverses and Remands Circuit Court Award of Fees for Discovery Misconduct: eDiscovery Case Law

In Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. ___ (2017), the Supreme Court of the United States, in a decision delivered by Justice Kagan reversed and remanded the decision by the US Court of Appeals, Ninth Circuit, for further proceedings, stating that “because the court here granted legal fees beyond those resulting from the litigation misconduct, its award cannot stand.”

Case Background

In this product liability case, the plaintiffs sued the defendant after their motorhome swerved off the road and flipped over, alleging the accident was caused by the failure of their Goodyear tire.  During discovery, the plaintiffs repeatedly asked the defendant to turn over internal test results related to the tire at issue, but “the company’s responses were both slow in coming and unrevealing in content.”  The parties eventually settled on the eve of trial, then, several months later, the plaintiffs’ counsel learned from a newspaper article that, in another lawsuit involving the tire at issue, it “got unusually hot” at certain speeds.  The defendant conceded withholding the information from the plaintiffs even though they had frequently requested “all testing data” related to the tire.  The plaintiffs sought sanctions for discovery fraud, in the form of payment of their “attorney’s fees and costs expended in the litigation.”

The District Court agreed to make such an award in the exercise of its inherent power to sanction litigation misconduct, and justified its authority to award a greater amount than the expenses caused by the offending behavior because the defendant’s “sanctionable conduct r[ose] to a truly egregious level.”  Ultimately, the court awarded $2.7 million to account for Plaintiffs’ legal costs “since the moment, early in the litigation, when Goodyear made its first dishonest discovery response.”  Acknowledging that the Ninth Circuit might require a link between the misconduct and the harm caused, however, the court also made a contingent award of $2 million. That smaller amount, designed to take effect if the Ninth Circuit reversed the larger award, deducted $700,000 in fees the plaintiffs incurred in developing claims against other defendants and proving their own medical damages. The Ninth Circuit affirmed the full $2.7 million award, concluding that the District Court had properly awarded the plaintiffs all the fees they incurred during the time when the defendant was acting in bad faith.

Court’s Ruling

The court noted that “Federal courts possess certain inherent powers, including ‘the ability to fashion an appropriate sanction for conduct which abuses the judicial process.’…One permissible sanction is an assessment of attorney’s fees against a party that acts in bad faith. Such a sanction must be compensatory, rather than punitive, when imposed pursuant to civil procedures.”  In this case, “[n]either court used the correct legal standard. The District Court specifically disclaimed the need for a causal link on the ground that this was a ‘truly egregious’ case…And the Ninth Circuit found that the trial court could grant all attorney’s fees incurred ‘during the time when [Goodyear was] acting in bad faith,’…—a temporal, not causal, limitation. A sanctioning court must determine which fees were incurred because of, and solely because of, the misconduct at issue, and no such finding lies behind the $2.7 million award made and affirmed below.”

In reversing and remanding the decision, the Court stated: “Although the District Court considered causation in arriving at its back-up award of $2 million, it is unclear whether its understanding of that requirement corresponds to the appropriate standard—an uncertainty pointing toward throwing out the fee award and instructing the trial court to consider the matter anew. However, the Haegers contend that Goodyear has waived any ability to challenge the contingent award since the $2 million sum reflects Goodyear’s own submission that only about $700,000 of the fees sought would have been incurred regardless of the company’s behavior. The Court of Appeals did not address that issue, and this Court declines to decide it in the first instance. The possibility of waiver should therefore be the initial order of business on remand.”

So, what do you think?  Should egregious behavior be subject to an award greater than the expenses incurred by the party affected by that behavior?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Lack of Cooperation Leads to Court to Order Scope of Discovery for Defendant: eDiscovery Case Law

In Bird v. Wells Fargo Bank, No. 16-1130 (E.D. Cali., Mar. 31, 2017), after the parties could not agree on the parameters and scope of discovery, California Magistrate Judge Erica P. Grosjean ordered the defendant to produce several categories of documents related to the plaintiff’s former employment, disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

Case Background

In this case for gender and age discrimination and breach of employment contract filed by a former employee of the defendant after termination (defendant’s claimed grounds for termination was failure to comply with its security policy), the parties initially submitted a joint FRCP 26(f) report the initial scheduling conference that stated that they did not anticipate that the case would “involve significant electronic discovery issues”.  However, discovery negotiations eventually broke down between the parties.  During a March 1, 2017 conference, the Court ordered the parties to meet and confer regarding the scope and terms of ESI discovery and requested a status report on March 15.

On the afternoon of that conference, the defendant wrote to the plaintiff to, among other things, demand a list of search terms from the plaintiff by close of business on March 3. The defendant concluded the correspondence by stating “If you breach the agreement and fail to provide the list by COB on Friday then our agreement regarding the documents discussed above is null and void ab initio and we will once against take these issues to Judge Grosjean and will move to compel Plaintiff’s deposition and seek sanction.”  Meanwhile, the plaintiff sent a meet and confer letter to the defendant on March 1 and another letter the following day, but did not receive a prompt response.

The day before the joint statement on meet and confer was due with the Court, plaintiff’s counsel wrote to defense counsel explaining that the defendant had not responded to the plaintiff’s meet and confer efforts.  The defendant finally provided its “position with regard to ESI” later that day at 4:33 pm, indicating (among other things) that it had purged the plaintiff’s emails after she was terminated, that it would take six to eight weeks to pull any requested ESI (which would still then have to be reviewed for privilege, privacy and confidentiality) and further reserved the right to shift all fees and costs incurred in the collection, review, and production of ESI to the plaintiff.

Judge’s Ruling

While acknowledging that both parties “shoulder some of the blame for this breakdown”, Judge Grosjean stated that “the Court is particularly troubled by Defendant Wells Fargo’s approach to discovery in this case. Defendant has taken the legally unsupportable position that it is not under any obligation to provide electronic discovery unless and until there is full agreement on search terms. This position has led to the predictable conclusion that discovery is completely stalled and Defendant is not close to meeting its discovery obligations. Defendant also withheld information about Plaintiff’s inbox until after the initial discovery cut-off. It both fails to provide any date certain for production and will not extend the schedule a reasonable amount of time. It continues to threaten to have Plaintiff pay its costs without any legal justification. The Court also takes issue with the tone of Defendant’s communication, such as telling Plaintiff that Defendant’s agreement to produce certain documents will be ‘null and void ab initio’ and that Defendant will request sanctions if Plaintiff did not provide certain search terms by the deadline imposed by Defendant…Such dialogue is not professional and not a good faith attempt to meet and confer.”

As a result, Judge Grosjean stated that “the Court will issue the following order under its authority in Rule 16 regarding the scope of discovery” and ordered the defendant to produce several documents related to the plaintiff’s employment, including her complete personnel file, documents regarding her termination and any disciplines or reprimands she received, documents regarding her compensation and security policy documentation (including a three year report of all employees who failed to comply with the defendant’s security policy, including age, gender and whether the employee was terminated).  Judge Grosjean also ordered the defendant to disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

So, what do you think?  Should the judge have dictated the discovery parameters for the defendant or should she have worked with the parties some more to resolve the conflicts?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

After Metadata Shows Agreement Documents to Be Unreliable, Defendant’s “Hans” are Tied: eDiscovery Case Law

In Ensing v. Ensing, et. al., No. 12591 (Del. Court of Chancery, Mar. 6, 2017), Vice Chancellor Slights ruled for the plaintiff in the case and concluding that the defendant “has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, ordering him to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.

Case Background

This case arose between a divorcing husband and wife operating a winery and boutique hotel in Italy (indirectly through two Delaware limited liability companies) when the husband (Dr. Hans Ensing) tried to remove the wife (Sara Ensing) and appoint himself as manager of one of the entities, and then engage in a series of transactions intended to divest Sara of her interests in the winery and hotel.  As a result, Sara (now the plaintiff) initiated action against her husband (now the defendant) in this case in July 2016.

During the case, the defendant produced a “Pledge Agreement” and a “Trust Agreement” purportedly executed by the plaintiff and defendant, making the defendant manager of one of the entities and allowing him to appoint the management for that entity. The plaintiff denied ever signing the agreement and claimed they were “forgeries”.  In response to the plaintiff’s claims that the documents were “forgeries,” the defendant told the court that he intended to have “certified copies” of the documents “prepared at the U. S. Embassy in Rome (which never happened) and claimed during an October deposition that a lawyer and accountant had been instrumental in forming the entities (but he couldn’t provide contact information for the accountant or even his nationality).

The defendant also could not produce the originals of either of the disputed documents, but continued to argue that both documents were evidence in his favor.  The defendant also ignored the court’s order to turn over the devices on which he testified that he had created and stored the agreements, leading the court to grant the plaintiff’s motion to draw an adverse inference against the defendant, putting the burden on him to prove the two agreements were authentic.

Then, on the eve of trial, the defendant attempted to distance himself from both documents. Nonetheless, the plaintiff offered evidence that the company stamp appearing above her name on the Pledge Agreement wasn’t created until 2015, but the document was created in 2012 and had a computer forensic expert testify that the metadata from the Trust Agreement PDF file revealed that it was created on June 15, 2016, and then emailed to the plaintiff thirty minutes later.

Vice Chancellor’s Ruling

Vice Chancellor Slights stated: “After carefully reviewing the evidence, I conclude that Sara has carried her burden of proving that Hans had no authority to remove her as manager of the entities, to appoint himself as manager of the entities or to transfer membership units of one of the entities to an entity under his control.”  Vice Chancellor Slights also concluded that “Hans has engaged in blatant violations of court orders and bad faith litigation conduct that justify serious sanctions”, referencing the two agreements as “sham documents”.  As a result, Vice Chancellor Slights also ordered the defendant to pay two-thirds of the plaintiff’s counsel’s fees and expenses and all of the plaintiff’s computer forensic expert’s fees and expenses.

So, what do you think?  Does it seem like there are more cases than ever with potentially altered or forged ESI?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Untimely Motion to Compel Production of Text Messages: eDiscovery Case Law

In Healthwerks, Inc. et. al. v. Stryker Spine, et. al., No. 14-93 (E.D. Wisc., Mar. 6, 2017), Wisconsin District Judge Pamela Pepper denied a motion to compel production of text messages issued by the plaintiffs and third party defendants against the defendant Stryker, agreeing with Stryker that filing the motion almost six months after discovery had closed was untimely.

Case Background

In April 2016, the plaintiffs and third-party defendants filed a motion, indicating that earlier in April 2016, the plaintiffs/third-party defendants had received from Stryker twenty-one text messages, all from a records custodian who had not been working for Stryker until after the filing of the lawsuit.  Several days later, Stryker informed the plaintiffs/third-party defendants that it had not searched any of its other employees’ phones for relevant text messages. The movants indicated that, while Stryker never had objected to their discovery demands that Stryker produce such text messages, Stryker now was arguing that it would not produce the texts absent a court order.

Although Stryker had produced tens of thousands of pages over the course of discovery, the movants argued that the production format did not permit them to search for text messages. The movants also indicated that when asked for more information, Stryker ignored the requests and simply demanded responses to its own discovery requests.  Finally, in April 2015, with trial looming, the movants “isolated the Stryker text issue” and Stryker first said it would look into the issue, but, according to the movants, then refused to review the texts of two key custodians to determine whether they had any responsive texts. The movants claimed that Stryker’s plan was to wait throughout the discovery period to produce the texts, then claim that the movants somehow had waived their right to expect them.

Stryker filed its response in May 2016, objecting that discovery had closed on November 16, 2015, and the movants hadn’t filed their motion to compel until five months later, and one month prior to the then-upcoming trial.  Stryker argued that the movants did not even seek to meet and confer about the texts until April 2016, months after discovery closed.

Judge’s Ruling

Judge Pepper began her analysis by stating: “So. On December 31, 2014, the movants served on Stryker discovery demands requesting any kind of document containing any kind of information about a whole bunch of stuff. Lawyers experienced in these sorts of demands – as Stryker’s counsel are – certainly would have figured out that one electronic form of communication the movants might have been seeking would have been texts.”  Judge Pepper also noted that, “[I]n response to these broad demands, Stryker – over the course of the next ten months – served tens of thousands of pages of discovery on the movants.”

As a result, Judge Pepper said the “The court will deny the motion to compel. As Stryker notes, the movants filed this motion almost six months after discovery had closed.”  Judge Pepper also noted that the “discovery period was quite extensive”, with the movants filing their discovery demands December 31, 2014 and the scheduling order having set the discovery deadline for November 16, 2015 (not to mention nearly a year before during which a discovery deadline was not set by the previous judge assigned to the case).  While she understood the movants’ explanation for why they did not file the motion until April 2016, Judge Pepper stated that “their failure to realize before the close of discovery that they could not search the discovery specifically for texts is not a basis for granting a late-filed motion to compel.”

So, what do you think?  Should the motion have been denied or should the defendant Stryker have been held accountable for lack of cooperation on text messages before the deadline?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Not Required to Modify Production After Plaintiff Fails to Demonstrate Prejudice: eDiscovery Case Law

In Excel Enterprises, LLC v. Winona PVD Coatings, LLC, No. 3:16-cv-19-WCL-MGG (N.D. Ind., Feb. 17, 2017), Indiana Magistrate Judge Michael G. Gotsch, Sr. ruled that despite the fact that the defendant failed to demonstrate that it produced documents kept in the ordinary course of business, the plaintiff failed to demonstrate any prejudice suffered from the current state of the production and granted the defendant’s motion to reconsider the court’s earlier order regarding the format of the defendant’s production.

Case Background

In this breach of contract case, the plaintiff’s counsel informed the defendant’s counsel that the documents in its original production were not searchable and identified the format for the documents it preferred. In response, the defendant converted all of its responsive documents to the plaintiff’s preferred format and delivered them to the plaintiff in the requested format on 8 days later in July 2016.

On that same day, the plaintiff filed a motion to compel alleging, among other things, that the defendant had not complied with the production requirements set forth in Fed. R. Civ. P. 34(b)(2)(E)(i), which requires parties to produce documents responsive to requests for production “as they are kept in the usual course of business” or to “organize and label them to correspond to the categories in the request.”  The plaintiff argued that the defendant’s documents were not presented as they were kept in the usual course of business and asked the Court to compel the defendant to organize and label the documents to clarify which document responded to which specific discovery request.

The Court ultimately granted this part of the plaintiff’s motion, ordering the defendant “to supplement its production to identify by Bates Numbers which documents were produced in response to which specific discovery requests by November 15, 2016” because the defendant’s assertion that it produced the requested documents as they were kept in the ordinary course of business was not sufficiently supported with appropriate evidence.  In response, the defendant filed an instant motion to reconsider, presenting additional evidence (including attaching an affidavit from its Director of Information Technology) in an attempt to show that its production complies with Rule 34(b)(2)(E)(i).  However, the plaintiff objected, arguing that the affidavit failed to explain how the documents were stripped of their metadata and converted to unsearchable .pdf and .tiff files before the initial production or maintained as unsearchable .pdf and .tiff files in its ordinary course of business.

Judge’s Ruling

Judge Gotsch noted that the defendant “had the opportunity to present evidence that it produced the 30,000 documents as they were kept in the usual course of its business”, but its “attempt to so demonstrate was determined to be deficient to such an extent that the Court ordered Winona to comply with the other option under Rule 34(b)(2)(E)(i)—organizing and labeling the 30,000 documents to correspond to the categories in Excel’s discovery requests.”  Even with the affidavit submitted with the instant motion to reconsider, Judge Gotsch noted that the affidavit “clearly describes the process Winona used to produce its responsive documents to Excel, but provides no explanation of how the responsive documents were kept in the ordinary course of Winona’s business.”

However, the defendant also argued that “Excel has yet to offer any argument or evidence that it has suffered prejudice as a result of Winona’s production.”  To that, Judge Gotsch responded, stating that “Winona is correct. Through both its second motion to compel and its objection to the instant motion to reconsider, Excel has merely asked the Court to hold Winona to the form of Rule 34(b)(2)(E)(i) with no discussion of any adverse effect on Excel should the Court deem Winona’s current production of 30,000 documents, in the format explicitly requested by Excel and with important identifying information, complete.”  Noting that Fed. R. Civ. P. 26(b)(1), gives district courts broad powers to manage discovery in their cases, Judge Gotsch stated that “Excel’s demand for strict compliance with Rule 34(b)(2)(E)(i) amounts to a form-over-substance argument. As such, the cost and time Winona would expend to organize and label the 30,000 responsive documents at this time would pose a burden that outweighs the potential benefit of the exercise to Excel.”  As a result, he granted the defendant’s motion to reconsider the court’s earlier order.

So, what do you think?  Was that the right decision or should the court have stuck with its original order?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

78 is Great! eDiscovery Daily Is Seventy Eight! (Months Old, That Is)

A new record!  (Get it?)  Seventy eight months ago today (a.k.a., 6 1/2 years), eDiscovery Daily was launched.  It’s hard to believe that it has been 6 1/2 years since our first three posts debuted on our first day, September 20, 2010.  Now, we’re up to 1,656 lifetime posts, and so much has happened in the industry that we’ve covered.

Twice a year, we like to take a look back at some of the important stories and topics during that time.  So, here are just a few of the posts over the last six months you may have missed.  Enjoy!

Thanks, once again, for your support!  Our subscriber base and daily views continue to grow, and we owe it all to you!  Thanks for the interest you’ve shown in the topics!  We will do our best to continue to provide interesting and useful eDiscovery news and analysis.  And, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

Defendant Ordered to Reproduce ESI in Native Format, As Originally Requested by Plaintiffs: eDiscovery Case Law

In Morgan Hill Concerned Parents Assoc. v. California Dept. of Education, No. 2:11-cv-3471 KJM AC (E.D. Cal. Feb. 2, 2017), California Magistrate Judge Allison Claire granted the plaintiffs’ motion to compel the defendant to produce emails in native format with all metadata attached, but denied the plaintiffs’ motion for sanctions without prejudice to its renewal using Sacramento rates for attorneys’ fees.  Judge Claire also denied the defendant’s motion for a protective order regarding production of the native format data, and its motion for sanctions.

Case Background

In this case regarding alleged violations of the Individuals with Disabilities Education Improvement Act, the plaintiffs served their First Set of Requests for Production of Documents in April 2013. The request specified that the ESI should be produced “in their native electronic format together with all metadata and other information associated with each document in its native electronic format.”  One month later, the defendant responded, but did not object to the instruction that ESI be produced in native format and did not propose any other format for producing the ESI, instead objecting to nearly every individual request in the First Set on the grounds that they were “unduly burdensome”, “not relevant to the present litigation,” and protected by the attorney client and deliberative process privileges.

In October 2013, the defendant submitted a proposed protective order to the court where it “observe[d]” that “the question whether to produce metadata generally involves a balancing test ….”.  The defendant subsequently claimed this was its original objection to the production of ESI in native format – they didn’t explicitly object to native format production until a letter sent to the plaintiffs in August 2016.  According to the defendant, they had produced ESI “as load files, a standard format approved by the Special Master on April 7, 2016.”  The parties met and conferred on the format of production issue in October 2016 without success.

Judge’s Ruling

With regard to the defendant’s argument that “[a] requesting party cannot demand production in one format versus another just because one would allegedly ease a party’s review process,” Judge Claire stated: “This argument runs directly contrary to the governing Rules, which expressly state just the opposite: the requester ‘may specify the form or forms in which electronically stored information is to be produced.’… Indeed, CDE’s dismissive rejection of ‘ease’ of review as a valid reason for specifying the format is difficult to understand, since ease of review is precisely why the requesting party would specify the format, and it is the very reason the requester is permitted to do so.”

With regard to the defendant’s argument that it can ignore the plaintiffs’ request for native format and produce it in some other format so long as the production is in a “`usable form, e.g., electronically searchable and paired with essential metadata’”, Judge Claire noted that the “The Rules specify that the responding party may produce ESI ‘in a reasonably usable form’ if the request ‘does not specify a form for production.’”  Since the plaintiffs’ request did specify it, Judge Claire ruled that “there was no basis for CDE to simply ignore it and produce it in a format of CDE’s own choosing.”  Judge Claire also rejected the defendant’s “attempt to drag the Special Master into this dispute” via undocumented recollection of an ex parte phone call approval from the Special Master, by noting that the Special Master is a technical consultant only, “not a judge who could ‘approve’ or disapprove of discovery production formats.”

Judge Claire also rejected even the defendant’s earliest claimed date of objection (October 2013) as untimely, since it was “six months after the document requests were served” and also ruled the more explicit objection in August 2016 as untimely as well.

As for the defendant’s argument that reproducing the ESI in native form would be burdensome, Judge Claire stated: “The court rejects this argument because this is a problem of CDE’s own making. CDE created the problem it now complains about by engaging in an ESI production in a format of its choosing — the ‘load file format’ — rather than the native format, with all metadata attached, as plaintiffs had requested.”  Judge Claire also noted that the defendant could have produced it originally in the requested format or objected in a timely manner and worked to meet and confer with the plaintiff – neither of which happened.

As a result, Judge Claire granted the plaintiffs’ motion to compel the defendant to produce emails in native format with all metadata attached.  Judge Claire denied the plaintiffs’ motion for sanctions without prejudice to its renewal using Sacramento rates for attorneys’ fees and also denied the defendant’s motion for a protective order regarding production of the native format data, and its motion for sanctions.

So, what do you think?  Could the defendant have gotten its way if it had objected in a timely manner?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.