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Court Settles Dispute Between Parties on Number of Custodians to Search and Produce: eDiscovery Case Law

In Family Wireless #1, LLC et. al. v. Automotive Technologies, Inc., No. 15-01310 (D. Conn., May 19, 2016), Connecticut Magistrate Judge Sarah A. L. Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from additional custodians, finding that “three of the six proposed custodians’ files are likely to include information relevant to this matter, and defendant has not met its burden of showing that inclusion of these three individuals would be unduly burdensome”.

Case Background

In this action for breach of contract, misrepresentation, unjust enrichment, and unfair trade practices between a franchisor and its franchisee, the parties met and conferred multiple times over the course of this litigation in an effort to come to a mutually agreeable list of ESI search terms and custodians.  The parties agreed to the search of the electronic files of seven custodians, but failed to agree on six additional custodians, leading to the plaintiff’s motion to compel.

The plaintiffs requested the inclusion of six additional custodians in the ESI search, arguing that, even though they were lower level employees, they “are believed to have been involved in both decision making and day to day operations relevant to the claims and defenses raised in the litigation”.  The defendants argued that a search of the emails of these individuals was duplicative and would not produce any relevant information that has not already been exchanged and that searching the files of the additional custodians would be overly burdensome, resulting in tens of thousands of additional documents and hours of costly review, partly based on a test search of two of the proposed custodians that “captured 51,583 e-mail family hits” to be reviewed for relevance.

Judge’s Ruling

Judge Merriam stated that she was “not persuaded that the addition of the six proposed custodians would be unduly burdensome for defendant. As defendant acknowledged during the conference, limitations on search parameters can be implemented so as to exclude the production of duplicative emails, addressing the concern that this production would consist of many emails that had been previously produced through the prior searches of the higher-level custodians. Using ‘de-duplication’ measures to limit the search should alleviate some of the cost and time concerns that defendant raises.”  Judge Merriam also was not swayed by the defendant’s arguments regarding relevance, indicating that “[t]he mere fact that many documents have already been produced is not sufficient to establish that there are no other relevant materials to be found.”

However, while Judge Merriam found “that plaintiffs have established good cause for expanding the ESI search to include three additional custodians”, she found that “no showing of good cause has been made by plaintiffs to search the ESI of the other three proposed custodians” during the in-person Discovery Conference the Court held to discuss the issues.  Therefore, Judge Merriam partially granted the plaintiff’s motion to compel the defendant to search and produce ESI from three additional custodians.

So, what do you think?  Should the court have ordered production from all six custodians?  Or was a partial production appropriate?  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 Determines Granting Defendant’s Motion to Request Overseas Documents is ‘Futile’: eDiscovery Case Law

In Al-Ameri et. al. v. Johns Hopkins Hospital, No. GLR-15-1163 (D.Md. May 26, 2016), Maryland Magistrate Judge Stephanie A. Gallagher denied the defendant’s motion to compel on the basis that compelling the discovery sought would be futile.

Case Background

In this medical malpractice case, the defendant served the plaintiffs with its discovery requests in July 2015.  Although the plaintiffs responded to the defendant’s interrogatories and document requests in October 2015, the defendant contended that the response was insufficient, with all of the disputed discovery requests seek documents that are located in the United Arab Emirates (UAE).

The plaintiffs did not challenge the relevance of the supplemental discovery sought, the defendant’s entitlement to the discovery sought, or that the plaintiffs’ heretofore-provided documents were not sufficiently responsive to the defendant’s requests. Instead, the plaintiffs indicated that they had made good faith efforts to obtain the requested documents from relevant entities in the UAE, but to no avail so far.  The plaintiffs even provided the defendant with authorizations to independently obtain the medical records from the UAE facilities, with plaintiffs’ counsel maintaining that it had “made numerous efforts” to produce itemized lien information from both the UAE hospitals and the UAE embassy.  Nonetheless, after conferring with plaintiffs’ counsel to address the purported deficiencies in the production, the defendant filed an instant motion to compel production.

Judge’s Ruling

Regarding the motion, Judge Gallagher stated:

“The so-called ‘discovery dispute’ regarding these document requests, then, is not really a dispute at all. Plaintiffs concede that they must produce the existing requested documents, but the fact remains that, for over a year, they have tried, and failed, to do so. Thus, as discussed during the status conference call, there is no reason to grant Defendant’s motion as to Requests Nos. 4, 5, 20, and 21, since doing so would be futile. Plaintiffs are not engaging in gamesmanship or withholding information. They acknowledge that the documents are crucial to the case, but are presently unable to obtain them. Compelling these documents would not suddenly change Plaintiffs’ situation or make the documents producible.”  As a result, Judge Gallagher denied the defendant’s motion because compelling the discovery would be futile.

So, what do you think?  Was the court correct to deny the motion?  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.

Defendant Requests Terminating Sanctions for Plaintiff, but Court Opts for Lesser Sanctions: eDiscovery Case Law

In Applied Underwriters, Inc. v. American Employer Group, No. 14-00379 (E.D. Tenn., May 2, 2016), Tennessee Magistrate Judge C. Clifford Shirley, Jr., ruling on several motions, granted in part and denied in part the defendant’s motion for sanctions, agreeing that the plaintiff’s numerous discovery deficiencies warranted sanctions, but not the dismissal that the defendant requested, opting instead to require the plaintiff to pay attorney’s fees for filing the motion.

Case Background

In this case which involved numerous discovery disputes, the defendant asserted that the plaintiff failed to comply with the Court’s discovery Orders, failed to follow the procedures set forth in the parties’ discovery plan, failed to follow the directives of the Court’s Protective Order, failed to follow the requirements of the Federal Rules of Civil Procedure, and failed to confer in good faith about discovery issues, arguing that the plaintiff produced a classic “document dump” when it produced its ESI.  At a hearing regarding the case, the defendant identified eleven deficiencies with the plaintiff’s production, including:

  1. failing to search for the agreed upon terms in creating the collective universe;
  2. failing to search the computer systems of several individuals that were agreed upon;
  3. failing to review the documents before producing;
  4. producing the documents out of order, without attachments, and without proper load files;
  5. failing to apply proper Bates stamps to some of the ESI;
  6. producing all four million pages with the “Attorney Eyes Only” designation;
  7. failing to produce the ESI in the format indicated in the parties agreement pursuant to the Rule 26(f) Report;
  8. submitting the document production without extracted OCR text and load files;
  9. producing ESI duplicative of that produced in previous discovery;
  10. producing “a number of folders, sub-folders, and sub-sub level folders with file names that do not make sense”; and
  11. not providing a spreadsheet to explain which documents are relevant to which request contrary to the parties’ agreement.

Other than that, the plaintiff’s document production was perfect… :o)

The defendant requested that the Court dismiss the lawsuit, or in the alternative, stay the case until the plaintiff obeyed the Court’s Orders and fully complied with its discovery obligations, also requesting an award to compensate it for the fees and costs it incurred in responding to and overcoming the Plaintiff’s discovery misconduct and its fees and costs associated with re-taking depositions.

Judge’s Ruling

Regarding the plaintiff’s production after they asked for additional time to produce the ESI requested, Judge Shirley stated that “contrary to the parties’ agreement and the Court’s Order, the Plaintiff did not perform the additional searches per the protocols discussed, i.e., performing searches on specifically named individuals’ computers. Moreover, when the March 8 discovery was produced, it was contrary to the plan set forth in the Rule 26(f) Report, it was unorganized, it failed to identify which document request it was answering, and it was all produced “Attorney’s Eyes Only.” Accordingly, the Court finds that sanctions are appropriate.”

Shirley, you can’t be serious!

However, Judge Shirley stopped short of ordering the harsh sanction of dismissal, stating “[w]hile the Court finds that sanctions are appropriate, the Court does not find that Plaintiff’s deficiencies warrant dismissal…As discussed at the hearing, instead of dismissal, the Court finds that the Plaintiff shall pay for the reasonable attorney’s fees and costs associated with the Defendant’s Motion for Sanctions, including the other Motions and filings that relate to the Plaintiff’s discovery deficiencies.”  Judge Shirley also ordered the plaintiff to pay “for the reasonable expenses, not to include attorney’s fees, for retaking” several depositions, including the plaintiff’s Rule 30(b)(6) witness’s depositions.

So, what do you think?  Were those sanctions sufficient?  How does Judge Shirley respond when somebody tells him “surely, you can’t be serious”?  (Seriously, I want to know).  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 Orders Plaintiff to Perform a “Download Your Info” From Facebook: eDiscovery Case Law

In Rhone v. Schneider Nat’l Carriers, Inc., No. 4:15-cv-01096-NCC, (E.D. Mo. Apr. 21, 2016), Missouri Magistrate Judge Noelle C. Collins ordered the plaintiff to disclose a complete list of her social media accounts to the defendant and also provide a “Download Your Info” report from her Facebook account from June 2, 2014 to the present within fourteen days and ordered the defendant to disclose to the plaintiff any and all posts, photos or other media from the report it intends to use in support of its defense.

Case Background

In this case, the plaintiff asserted that she sustained “severe physical injuries” as a result of a motor vehicle accident that occurred on June 2, 2014, when the vehicle driven by Third Party Defendant Charles Quinn, in which the plaintiff was a passenger, was struck from behind by Defendant Schneider National Carriers, Inc.’s (“Schneider”) vehicle driven by Defendant Dean Lilly.  The defendant requested production of any social media postings, photographs and/or videos posted by the plaintiff to any social media accounts since the date of the accident; in turn, the plaintiff objected and did not acknowledge the existence of any social media accounts.

However, according to Defendant Schneider, its own independent investigation uncovered that the plaintiff did have a Facebook account and may have also had a LinkedIn account and the information uncovered included “relevant information; specifically, comments and photos regarding physical activity such as dancing”.  The plaintiff initially objected to the defendant’s request for social media information as irrelevant, then provided a supplemental answer to the defendant’s request to indicate that no social media information was “related to this incident”.

As a result, the defendant requested that the plaintiff be required to provide a “Download Your Info” report from her Facebook account from the date of the accident, June 2, 2014, to the present. In the alternative, in the event the account or other social media content has been deleted, the defendant requested sanctions in the form of dismissal of the action with prejudice and attorney’s fees.  In response, the plaintiff indicated that the defendant had “failed to show that any evidence, whether relevant or irrelevant, has been deleted” and that the motion was moot as the defendant had already accessed the plaintiff’s Facebook account and printed at least 264 pages of Facebook postings; the defendant countered that sanctions are warranted because, although the plaintiff claimed not to have deleted any posts, its January 2016 download from the plaintiff’s Facebook account produced 441 pages of material whereas the same method in March 2016 retrieved only 226 pages of material.

Judge’s Ruling

In light of the information available, Judge Collins found that “Plaintiff has not fully and completely responded to Schneider’s production requests, even in light of her objections. Plaintiff did not initially disclose the existence of any social media accounts. However, Plaintiff does not deny that the Facebook account in question belongs to her. Furthermore, there is some indication that Plaintiff may have other social media accounts.  Accordingly, Plaintiff shall disclose to Schneider a complete list of Plaintiff’s social media accounts during the requested time periods.”

Judge Collins also ruled that “Plaintiff is directed to provide a ‘Download Your Info’ report from her Facebook account from the date of the accident, June 2, 2014 to the present. Plaintiff and Schneider shall consult regarding the process and the most effective means of disclosing this information. Thereafter, Schneider shall produce to Plaintiff, from this download, any and all posts, photographs, videos or other material that it intends to rely on for its case. However, the Court finds that, at this time, sanctions are unwarranted. Not only is it unclear whether Plaintiff has deleted any information, such a download from Facebook may afford Plaintiff the ability to recover any, even innocuous, information that may have been deleted.”

So, what do you think?  Should the court have required the plaintiff to download the info from her Facebook account?  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.

Plaintiffs Ordered to Produce a Copy of Access Database for Forensic Analysis: eDiscovery Case Law

In Thorne Research, Inc. et. al. v. Atlantic Pro-Nutrients, Inc., No. 13-784 (D. Utah, Mar. 22, 2016), Utah Magistrate Judge Paul M. Warner determined that, because the parties had competing affidavits regarding whether a Microsoft Access database created by the plaintiffs’ co-inventor stores metadata and that metadata (if present) was clearly relevant, the defendant should be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in the native format of the Access database.

Case Background

In this case, the plaintiffs filed suit against the defendant for patent infringement and the defendant filed a counterclaim seeking a declaratory judgment of non-infringement and invalidity of the patent.  To bolster its effort in obtaining its declaratory judgment, the defendant moved for an order compelling the plaintiffs to provide a complete copy of the Microsoft Access database that co-inventor Donald Steele utilized to input his formulas, seeking the metadata it alleged was contained in the Access database to independently determine the legitimacy of the plaintiffs’ claim that Mr. Steele and his co-inventor were the first inventors of the patent.  The defendant claimed that the plaintiffs tampered with the Access database to create a false early conception date of the invention.

The plaintiffs argued that Access databases do not maintain metadata like word processing or spreadsheet programs do and that the database was owned and maintained by a third party that kept all of its and its customers’ formulations in the Access database, not just the plaintiffs’ formulations and that giving the defendant access to the database would also be giving it access to the third party’s proprietary information. The plaintiffs also asserted that that there was no evidence of tampering with the database.  To address the concerns over third party information, the defendant indicated that the plaintiffs could provide the electronic copy of the database under the designation of “CONFIDENTIAL INFORMATION — ATTORNEYS EYES ONLY” and argued that the plaintiffs had failed to demonstrate that providing the database with the metadata intact would present an undue hardship or expense.

Judge’s Ruling

Because the parties had competing affidavits regarding whether the Microsoft Access database stores metadata, and because evidence regarding the date of the invention was clearly relevant to the case, Judge Warner ruled that “Defendant ought to be allowed the opportunity to conduct a forensic analysis as to whether or not the metadata exists in its native format.”  Regarding the plaintiffs’ concerns regarding disclosure of proprietary or confidential information, Judge Warner indicated that “an attorneys eyes only designation pursuant to the protective order should provide a sufficient safeguard against disclosure of confidential or proprietary information.”  As a result, he ordered the plaintiffs to produce a copy of the Microsoft Access database to the defendants within ten days of the date of the order.

So, what do you think?  Should the court have allowed a forensic analysis of the Access database?  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 Orders Defendant to Re-Produce Selected Documents in Native Format: eDiscovery Case Law

In Spring v. Board of Trustees of Cape Fear Community College et. al., No. 7:15-CV-84-BO (E.D. N.C., Apr. 7, 2016), North Carolina Magistrate Judge James E. Gates, in ruling on several discovery disputes between the parties, granted the plaintiff’s motion to compel in part, ordering the plaintiff to identify documents to be re-produced in native format and for the defendant to re-produce those documents or move for appropriate relief after conferring with plaintiff if it deemed the number of documents identified to be unjustifiably large.

Case Background

In this breach of contract case over a forced resignation, the court entered a scheduling order in August 2015, adopting the parties’ proposed discovery plan which provided that “the requesting party is entitled to have electronic files produced in `native’ format, with accompanying metadata, upon request.”  After the defendant produced documents in response to the plaintiff’s requests for production, the plaintiff sent a letter to defendants’ counsel in December 2015 addressing perceived deficiencies in the defendant’s production.  The defendant produced some supplemental documents, but the plaintiff contended that the defendant’s production was still incomplete.  The plaintiff filed a motion to compel in February 2016, seeking further production, as well as re-production of the originally produced documents in native format.

Judge’s Ruling

After addressing the various requests for further production, allowing in part and denying in part the plaintiff’s requests, Judge Gates turned to the plaintiff’s request for production of electronically stored information in its native format, as stated in the terms of the discovery plan adopted by the Scheduling Order.  While the defendant’s initial production of 2,576 pages was not in native format, the defendant noted that, at the time, the plaintiff did not object to the non-native format of the production.  Since the time plaintiff raised the issue, the defendant stated that it had produced 2,084 documents in native format with metadata and offered to re-produce in native format with metadata specific documents identified by the plaintiff, but objected to re-producing all prior non-native format production.

Judge Gates stated:

“The court agrees with the Board that re-production of all documents at this point would be unduly burdensome. If there are documents, or categories of documents, for which plaintiff requests re-production in native form with metadata, plaintiff shall provide such identification to the Board as soon as practicable, but in no event later than 15 April 2016. The Board shall re-produce in native format with metadata the documents identified as soon as practicable, but in no event later than 28 April 2016, provided that the Board may move by that date pursuant to Local Civil Rule 7.1(c), E.D.N.C. for appropriate relief after conferring with plaintiff if it deems the number of documents identified to be unjustifiably large. The portion of plaintiff’s motion to compel seeking re-production of the documents sought is accordingly ALLOWED IN PART and DENIED IN PART on the foregoing terms.”

So, what do you think?  Considering that it was agreed to in the discovery plan, should the judge have ordered all documents to be re-produced in native format?  Or was the order to re-produce selected documents sufficient?  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.

Merely Stating That ESI Request Is Not Relevant Or Proportional Is Not Sufficient, Court Rules: eDiscovery Case Law

In Digital Ally, Inc. v. Utility Associates, Inc., No. 14-2262-CM-GEB (D. Kan. Apr. 15, 2016), Kansas Magistrate Judge Gwynne E. Birzer granted the plaintiff’s motion to compel discovery, overruling the defendant’s objections that the request was neither relevant nor proportional to the issues in this case, because the defendant “has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1)”.

Case Background

In this case for tortious interference stemming from the defendant’s hiring of a former sales manager of the plaintiff, the two parties were able to successfully resolve early disputes regarding discovery.  However, during the deposition of the defendant’s former vice president in November 2015, twelve categories of unproduced documents were identified which the plaintiff believed to be responsive to its First Requests for Production.  Communications between the parties resolved discussions regarding six of the categories, but when the parties could not agree on the other six categories, the plaintiff filed a Motion to Compel, seeking the remaining six categories of documents.  Subsequently, the plaintiff agreed to withdraw its motion regarding four of the requests, leaving requests for two categories for the court to address.

The defendant argued the motion to compel should be denied because it was filed more than ten months after the plaintiff served its initial Requests and was untimely under D. Kan. Rule 37.1(b). The defendant also maintained that the plaintiff failed to properly confer before filing its motion, as required by D. Kan. Rule 37.2.  With regard to the individual requests, the defendant argued the first request was “neither relevant nor proportional to the issues in this case” and also objected to the request as overbroad for failure to identify custodians of, and provide search terms for, any alleged e-mails as required by the Scheduling Order.  The defendant objected to the second request on the basis of relevance.

Judge’s Ruling

With regard to the defendant’s objection regarding the timeliness of the request, Judge Birzer disagreed, finding that, although the plaintiff failed to file its motion within 30 days after the defendant’s initial discovery responses, “the motion was filed within 30 days of the defendant’s final communication regarding production of the six categories of documents which became an issue after [the former VP’s] deposition”.  With regard to the defendant’s contention that the plaintiff failed to properly confer before filing its motion, Judge Birzer also disagreed with that, ruling that “[b]ecause the parties communicated both in writing and by phone regarding the disputed requests, the Court finds the duty to confer under Rule 37.2 is satisfied”.

With regard to the defendant’s objection to the first request, Judge Birzer stated:

“Aside from simply stating the terms, Defendant has not expounded on its objections to relevance or proportionality under Fed. R. Civ. P. 26(b)(1), and those objections are overruled. Because Plaintiff brings multiple claims of tortious interference with its business, the information sought by the request appears relevant on its face, and Defendant has not met its burden to demonstrate otherwise.  Additionally, any concerns regarding overbreadth or proportionality may be addressed by following the guidelines of the Scheduling Order.”

With regard to the defendant’s objection to the second request, Judge Birzer determined that the defendant “has not met its burden to demonstrate lack of relevance; therefore the objection is overruled.”  With all objections overruled, Judge Birzer granted the motion to compel with instructions for the plaintiff to resubmit the first request following the terms of the Scheduling Order.

So, what do you think?  Do you think we’ll see more cases where objections are overruled because they don’t provide specificity regarding the objections?  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 Plaintiff’s Request for Native ESI Format, Approves Request for Index: eDiscovery Case Law

In Stormo v. City of Sioux Falls, et. al., No. 12-04057 (D. S.D., Feb. 19, 2016), South Dakota District Judge Karen E. Schreier, ruling on several motions, denied the plaintiff’s motion to compel with regard to requiring the defendants to provide electronically stored information in its native format and metadata for these documents, but granted it with regard to providing an index explaining information about the documents.

Case Background

In this pro se lawsuit where the plaintiff sued the defendants for violations of his civil rights with respect to his status as a landowner and landlord, the court granted the defendants’ motion for summary judgment in part. The plaintiff then filed a second amended complaint with additional claims.  As Judge Schreier noted, “Discovery is ongoing and fraught with complications. Stormo has filed numerous motions, often raising unrelated, irrelevant, or indecipherable arguments. Defendants have neither responded to all of Stormo’s discovery requests adequately nor complied with all of the court’s orders sufficiently.”

In the plaintiff’s latest motion, the plaintiff moved the court to, among other things, compel defendants to provide electronically stored information in its native format, provide metadata for these documents, and provide an index explaining information about the documents.

With regard to the metadata, the plaintiff argued that metadata would allow him to discover whether the data is “forensically sound,” specifically: when it was created, accessed, or modified.  Countering, the defendant argued that providing the metadata would be overly burdensome and stated that they have no system that tracks the metadata sought by the plaintiff and they would have to go through each document and retrieve the metadata from the program with which the document was created.  As for the request for the index, the plaintiff claimed that the defendants produced a jumbled group of documents which is not labeled or indexed in any manner, but the defendants argued that they produced documents in an organized fashion and in the form kept in the ordinary course of business.

Judge’s Ruling

Judge Schreier began her analysis by citing Federal Rule of Civil Procedure 34(b)(2)(E), which states:

“(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form…”

With regard to the plaintiff’s request to compel the defendants to reproduce documents in their native format, Judge Schreier stated that “He claims that he made a general request for all electronically stored information in its native format at the time of his initial document request…He does not, however, explain what is wrong with the format in which defendants have produced the documents. Therefore, the motion to compel is denied as it concerns his request to reproduce documents in their native format.”

With regard to the request for metadata, Judge Schreier stated:

“Defendants’ response may fail to articulate how this discovery is extraordinary or unusual, but Stormo has failed to show the metadata’s relevancy to his claims. His motion to compel argues that he wants the metadata to be sure that the documents were not created for or altered in anticipation of litigation…Stormo has not explained why he thinks defendants might have done this. There is no indication that they have altered the documents. Stormo fails to convince the court that the metadata is relevant to his claims, the request falls outside of the parameters of discovery, and therefore, his motion to compel is denied as it concerns his request for metadata.”

As for the request for an index, Judge Schreier ruled on this point in favor of the plaintiff, noting that “Stormo requests only “a) the bates number or other identifier of the document; b) the name of the person who is custodian of the document; c) the original source and author of the document; and d) the document request number and request number of any requests that the document is responsive to” for each document…Supplying this information is not overly burdensome on defendants. Therefore, Stormo’s motion to compel is granted as it concerns preparation of an index that supplies the information described above.”

So, what do you think?  Was the plaintiff’s request for native format documents and metadata unreasonable?  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.

Plaintiff Granted Documents Withheld Due to Privilege, But Denied Expanded Search of Emails: eDiscovery Case Law

In Moore v. Lowe’s Home Ctrs., LLC, No. 14-1459 RJB (W.D.Wash. Feb. 19, 2016), Washington District Judge Robert J. Bryan ruled in favor of the plaintiff that documents and communications dated before the defendant anticipated litigation were not privileged work product and should be produced, but he ruled against the plaintiff in her request have the defendant perform additional searches on email to identify additional relevant documents.

Case Background

In this discrimination case, the plaintiff filed a Motion to Compel Production of Improperly Withheld Documents and Responses to Discovery Regarding Destruction of Plaintiff’s and Other Witnesses’ Email.  In her Motion to Compel, the plaintiff requested (among other things) for the Court to order the production of documents withheld on the basis of privilege and work product and compel additional searches for, and production of, emails responsive to the plaintiff’s discovery requests.

With regard to the documents withheld on the basis of privilege and work product, the defendant claimed that it properly withheld communications between non-attorneys because privilege extends to corporate employees for confidential communications with corporate attorneys and for confidential communications relating to legal advice from those attorneys.

As for the additional searches requested by the plaintiff (due in part to the emails in the plaintiff’s possession that were not uncovered in the defendant’s search), the plaintiff asserted that the defendant should demonstrate that it performed a diligent search, that the defendant should conduct additional searches using terms requested by the plaintiff and that these new searches be conducted without including Plaintiff’s first or last name, on the email accounts of each witness.

In response, the defendant argued they had reviewed 21,000 emails from 17 custodians at a cost of $48,074, that the relevant emails from 2012 were likely deleted and that a search using the 88 newly requested search terms (including annoy*, bull, click*, dad, date*, hand, rack, rod, box) in conjunction with removing Plaintiff’s name from the search would result in hundreds of thousands of irrelevant emails.

Judge’s Ruling

With regard to the documents withheld on the basis of privilege and work product, Judge Bryan ruled that “Defendant states that it anticipated litigation as of April 25, 2013…Therefore, documents created prior to that date are not work product. Similarly, investigative communications made before April 25, 2013, in relation to Plaintiff’s complaints and termination fall outside the realm of legal advice and are thus not privileged. Investigation into employee complaints or misconduct serves a predominantly HR function, especially if the investigation takes place before litigation is anticipated. Defendant has not provided sufficient information to distinguish its activities as legal in nature.”  As a result, the defendant was ordered to “produce documents and communications dated before April 25, 2013, relating to investigations into Plaintiff’s complaints and termination.”

With regard to the additional searches requested by the plaintiff, Judge Bryan stated:

“Plaintiff’s request for email searches is overly broad and not proportional to the 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.”

So, what do you think?  Should the parties have been ordered to meet and confer regarding the search terms?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will be off tomorrow for Good Friday and will resume with a new post on Monday.

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.

Dispute Over Adequacy of Defendant’s Production Leads to Court Ordered Meet and Confer: eDiscovery Case Law

In Gardner et. al. v. Continental Casualty Company, No. 13-1918 (D. Conn., Jan. 13, 2016), Connecticut Magistrate Judge Joan Glazer Margolis, granting the plaintiff’s motion to compel in part, ordered the parties to meet and confer regarding “’sampling and iterative confinement’ or ‘quick peek protocol’ of the 38,000 documents ‘hit’ by the agreed upon search terms and notify the court in writing “about their progress, or lack thereof, on or before February 12, 2016.”

Case Background

In this class action for violations of Connecticut’s Unfair Trade Practices Act, the parties agreed (after some negotiation) to a list of search terms from the e-mail of twenty-three custodians, which resulted in a return of approximately 38,000 documents.  However, after the defendant reviewed these documents for relevancy and privilege, it produced only 2,214 pages, of which 274 pages consisted of copies of the complaints, with exhibits, filed in the lawsuit.

The plaintiffs filed a Motion to Compel, arguing that the defendant “cherry-picked” the produced documents and called the production “incomplete and inadequate”, citing to four documents where they contended that the defendant redacted or omitted “highly relevant” materials.  The defendant countered that it had provided the plaintiffs with extensive discovery over twenty-two months, including 16,800 pages of documents and indicated that it “spent significant resources reviewing the 38,000 documents identified as the result of the search term process,” and provided their own justification for the redactions in the four documents mentioned by the plaintiffs.

The plaintiffs responded that they did not accept the defendant’s “just trust us” approach to relevancy, that “the entire exercise of agreeing on search terms was to avoid a prolonged and detailed debate over what ESI documents are `responsive’ to the discovery requests”, that ESI production based on search term hits only “is a common discovery practice ordered by courts,” and that documents provided by LTCG (the defendant’s third-party claims administrator) were far more comprehensive and informative than those provided by the defendant, confirming that the defendant’s “ESI production is woefully deficient.”

Judge’s Ruling

In considering the plaintiff’s motion, Judge Margolis stated that the “position taken by plaintiffs is simply untenable – defendant is not obligated to turn over all 38,000 documents, after a review eliminates some on the basis of privilege…As every law school student and law school graduate knows, when performing a computer search on WESTLAW and/or LEXIS, not every case responsive to a search command will prove to be relevant to the legal issues for which the research was performed. Searching tens of thousands, and hundreds of thousands, of electronic documents is no different. The Court shares, however, plaintiffs’ legitimate concern that LTCG produced different, and obviously relevant, documents that were not provided by defendant itself.”

To attempt to have the parties resolve the dispute themselves, Judge Margolis ordered that “counsel shall confer further regarding variations of two approaches discussed in the Strauch Ruling — ‘sampling and iterative refinement’ or ‘quick peek protocol’ – of the 38,000 documents ‘hit’ by the agreed upon search terms, and shall notify the Magistrate Judge, in writing, about their progress, or lack thereof, on or before February 12, 2016.”  As for the four redacted documents in dispute, Judge Margolis ordered the defendant to forward unredacted versions “for her in camera review, to determine if defendant’s redactions were appropriate or overbroad with respect to those four documents”.

So, what do you think?  Was that a reasonable resolution to the dispute or should the court have ruled one way or the other?  Please share any comments you might have or if you’d like to know more about a particular topic.

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