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Cooperation

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was last Tuesday and part two was last Thursday, here is the third part.

Cooperation Challenges

Now let’s turn to some of the individual responses.  As I mentioned in part two, the most popular choice for plaintiff eDiscovery pain points was cooperation. Bob Eisenberg, like several others, had an answer that bordered on the protocol issue, saying that:

“… there is, it seems, frequently, an almost cavalier attitude to understanding eDiscovery technical aspects and a lack of necessary skills in connection with the subject of forms of production, for instance. This sometimes extends to eDiscovery jurisprudence, as well and leads to inefficiencies and lack of defensibility in the production of ESI.”

Drew had a similar response in saying that the lack of cooperation was often manifested in a “hard line attitude” with a common approach by defense teams of saying that their proposal was an  “…industry preferred standard” with no room for negotiation or, alternatively, wrangling over minutiae of details such as metadata or load file separators.

Both Jean and Ariana mentioned the example of a repeated insistence on the use of search terms in the blind by Defense teams. As Ariana stated,

“Application of search terms that are unilaterally selected by and applied by opponent with production that follows without QC/validation/testing and then the inevitable erected proportionality argument by the opponent that it need do no more.”

Craig had an interesting response that seemed to address cooperation so I counted it there, when he said that,

“As well, plaintiffs’ lawyers do an abysmal job of drafting requests with the specificity and precision needed to forestall successful proportionality objections.”

Finally, both Craig and Drew had an answer that addressed motion practice, Craig with his reference to the ongoing use of outdated boilerplate pleadings by both sides and Drew with his comment regarding “an increased focus by Defense teams on arguing ‘discovery about discovery’ motions, especially with regard to 30(b)(6) depositions.”

We’ll publish Part 4 – Lack of Competence Challenges – on Wednesday.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Establishes Search Protocol to Address Plaintiff’s Motion to Compel: eDiscovery Case Law

In Lawson v. Spirit Aerosystems, Inc., No. 18-1100-EFM-ADM (D. Kan. Apr. 26, 2019), Kansas Magistrate Judge Angel D. Mitchell granted in part and denied in part the plaintiff’s motion to compel, ordering the defendant to produce documents related to two requests and, with regard to a third request, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”

Case Background

This case regarded the defendant’s alleged breach of a retirement agreement with the plaintiff due to plans by an investment firm to install the plaintiff as CEO of an aircraft component manufacturer (“Arconic”) where the defendant withheld the plaintiff’s retirement benefits because the defendant claimed that he violated the non-compete provision in his retirement agreement.

In discovery, the plaintiff filed a motion to compel, seeking “the court’s intervention regarding discovery related to the “Business” of Spirit and Arconic. Specifically, Mr. Lawson asks the court to compel Spirit to produce (1) its contracts with Boeing and Airbus; (2) its antitrust filings relating to its planned acquisition of Asco Industries; (3) documents related to the aspects of Spirit’s business that Spirit alleges overlap with Arconic’s business; and (4) documents related to Spirit’s relationship with Arconic.”  At a subsequent hearing, the plaintiff clarified that he was not seeking to compel the full scope of documents sought in the original Requests for Production, but rather only the smaller subset of documents that were the subject of his motion to compel.

Judge’s Ruling

With regard to the Boeing and Airbus Contracts, Judge Mitchell granted the plaintiff’s motion “with respect to the portions of these contracts (or amendments, addenda, exhibits, schedules, data compilations, or lists) that relate to Spirit’s deliverables to Boeing and Airbus.”  And, with regard to Antitrust Filings, Judge Mitchell granted the plaintiff’s motion “with respect to the portion of these filings relating to Spirit’s business and market/marketing positioning, including the index(es) for these filings, the “4(c) documents,” and related white papers.”  He ordered the defendant to produce documents related to both categories “on or before May 7, 2019.”

With regard to Product Overlaps and Spirit’s Relationship with Arconic, Judge Mitchell granted these aspects of the motion in part and denied them in part, ordering the defendant to “produce these documents to the extent that such documents are captured by the ESI search protocol.”  That protocol was as follows:

“After consultation with the parties, the court orders the parties to comply with the following ESI search protocol:

  • By May 3, 2019, Mr. Lawson shall identify up to seven categories of documents for which it seeks ESI.
  • By May 20, 2019, for each category of documents, Spirit shall serve a list of the top three custodians most likely to have relevant ESI, from the most likely to the least likely, along with a brief explanation as to why Spirit believes each custodian will have relevant information.
  • By May 23, 2019, Mr. Lawson shall serve a list of five custodians and proposed search terms for each custodian.

 *3 • Spirit shall search the identified custodians’ ESI using these proposed search terms. Spirit shall use sampling techniques to assess whether the search has produced an unreasonably large number of non-responsive or irrelevant results and, if so, Spirit shall suggest modified search terms (e.g., different keywords, negative search restrictions, etc.) by May 30, 2019.

  • The parties shall meet and confer about search terms and try to achieve an estimated responsive hit rate of at least 85%.
  • Spirit shall produce responsive documents from the first five custodians on or before June 21, 2019.
  • Meanwhile, the parties shall begin this same process for the next five custodians. By May 30, 2019, Mr. Lawson will produce to Spirit a list of the next five custodians and proposed search terms for each custodian. If Spirit finds that the estimated responsive hit rate is not at or above 85%, Mr. Lawson shall suggest modified search terms by June 6, 2019. The court will set a deadline for Spirit to produce documents from the second set of five custodians at a later time.

If Mr. Lawson wishes to seek ESI from additional custodians beyond the ten described in this protocol, the parties are directed to contact the court for further guidance.”

Judge Mitchell also denied the plaintiff’s request to order the defendant to pay his attorneys’ fees and costs associated with the motion to compel.

So, what do you think?  Do you think the ordered responsive hit rate of 85% is reasonable?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Part one was Tuesday, here is the second part.

Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys

With regard to my question regarding the top 3 pain points in plaintiffs’ eDiscovery work, I thought that the most common answer or problem would be something technical such as exchange protocols and/or load files.  But the clear winner was actually cooperation. The issue of protocols came in behind that along with competence, followed by lack of tools.  After that each of the people responding had an answer somewhat unique to themselves.

Here are the actual answers from each of the experts regarding the top 3 pain points for plaintiffs:

  • Craig: Short Sightedness, Competence, No tools/training
  • Bob: Cavalier Attitude, No knowledge of IG, Lack of tools
  • Drew: Cooperation, Protocols, Motion practice
  • Jean: Producing party issues, Protocols, Search terms
  • Ariana: Competence, Data Dumps, Search terms

Before I look at each of the responses, I should note that Craig Ball had a very insightful overview about the general differences between plaintiff and defense firms in eDiscovery.

“The challenges faced by plaintiffs’ lawyers confronted by eDiscovery flow from structural differences in practice.  Plaintiffs’ lawyers operate as small firms and solos who finance their cases and are compensated on contingency.  So, plaintiffs’ lawyers tend toward frugality (as they are spending their own money) and shy away from capital expenditures that cannot be reliably expensed against the matter. Plaintiffs’ lawyers tend not to possess (or need) the costly in-house IT operations of large defense firms and, crucially, plaintiffs’ lawyers don’t have large support staffs for IT and litigation support because the cost of same can’t be spread across hundreds or thousands of lawyers.”

“Without in-house eDiscovery teams at the ready, plaintiffs’ lawyers are more apt to “wing it” or seek expertise only when obliged to do so on an ad hoc basis.”

We’ll publish Part 3 – Cooperation Challenges – next Monday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held tonight(!) at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets – it’s not too late!  You can even buy tickets at the door!  And, remember, it’s for a great cause.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including his most recent one, Why Does Production Have to be Such a Big Production?, which we will cover as part of a webcast on May 29.  Now, Tom has written another terrific overview regarding the biggest eDiscovery challenges facing plaintiff’s attorneys titled (oddly enough) Biggest eDiscovery Challenges Facing Plaintiff’s Attorneys that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into five parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

Approximately 2/3 of my consulting practice revolves around issues with ESI production. Much of that work involves asymmetrical cases where one side, typically corporate defendants, has the vast majority of discovery. And since my experience is not untypical, what we see in eDiscovery practice is a heavy focus in the eDiscovery world on defense strategy, both in actual practice and educational conferences.

But what about strategy for the Plaintiff’s bar? Do they have different even dramatically different needs simply because they have less ESI?  In discussing this article, I was asked the following questions which we will consider below:

  • Do symmetrical cases (both parties producing comparable discovery) differ from asymmetrical cases (one side has vast majority of discovery) that much in terms of strategy?
  • Are plaintiffs more interested in expanding the scope of production (to get more potential evidence) or avoiding the old “document dump” because they don’t have the resources? Or does it depend on the type of plaintiff?
  • Are plaintiffs more motivated to request native files than defendants because they are more invested in using the metadata?
  • Does the EDRM model seem more like a defense model than a plaintiff model, given that it is more focused on producing then presenting? Should there be a model for requesting parties?

To research this issue, I decided to begin by asking several attorneys with Plaintiffs’ side experience, past and present, the following question, “What would you say are your top 3 pain points in plaintiffs’ eDiscovery work?”

My query went to the following attorneys:

  • Craig Ball, well known consultant, ESI expert, Special Master, former plaintiffs’ attorney and author of the Ball in Your Court blog;
  • Ariana Tadler, Managing Partner at Milberg Tadler Phillips Grossman LLP & Founding Principal at Meta-e Discover
  • Bob Eisenberg, Director, eDiscovery & Information Governance at Larson Security LLC and Program Director at the Cleveland-Marshall College of Law (CMLaw) eDiscovery Professional Certificate Program
  • Drew Ashby, Wrongful Death and Catastrophic Injury Trial Attorney at The Cooper Firm
  • Jean Martin, head of the Morgan & Morgan Complex Litigation Group in Wilmington, North Carolina

In this paper, we will take a look at their responses and comments regarding the biggest eDiscovery challenges facing plaintiff’s attorneys, as follows:

  1. Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys
  2. Cooperation Challenges
  3. Lack of Competence Challenges
  4. Conclusions

We’ll publish Part 2 – Top Three eDiscovery Pain Points Experienced by Plaintiff’s Attorneys – on Thursday.

Also, just a reminder that CloudNine will be the Scarlett sponsor of the Murder in the Manor charity fundraiser hosted by Oasis Discovery to be held this Thursday, May 16th at The Mansion on O Street in Washington DC (2020 O Street NW, Washington, DC 20036).  CloudNine will be running the Speakeasy, where drinks will be available and a lot of fun will be had.  And, all proceeds from the event will benefit the Capital Area Food Bank (CAFB), which is the largest public, non-profit hunger and nutrition education resource in the Washington Metropolitan Area.  Click here for more information and to purchase your tickets.  Remember, it’s for a great cause.

So, what do you think?  Are you a plaintiff’s attorney?  If so, what are your biggest eDiscovery challenges?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Rules Defendant Objections to Discovery Requests Are Too Late, Too Little: eDiscovery Case Law

In Thomas on Behalf of Estate of Thomas v. Bannum Place, Inc., No. 4:17-cv-13492 and No. 4:18-cv-10222 (E.D. Mich. Feb. 6, 2019), Michigan Magistrate Judge Anthony P. Patti granted and denied the plaintiff’s motion to compel in part, ruling that all of the defendant’s objections to the plaintiff’s discovery requests “are WAIVED…because of its failure to timely respond and object to either set of Plaintiff’s discovery requests.”  Judge Patti also granted “reasonable expenses” to the plaintiff in bringing her motion to compel.

Judge’s Ruling

Having considered the motion papers and the oral argument of counsel regarding the defendant’s objections to discovery requests and the plaintiff’s motion to compel, Judge Patti stated:

“All of Defendant Bannum’s objections to Plaintiff’s first and second sets of discovery requests are WAIVED, including objections based on the attorney-client privilege or attorney work product doctrine, because of its failure to timely respond and object to either set of Plaintiff’s discovery requests…Moreover, Defendant not only failed to make timely objections on the basis of privilege or any other bases, but also failed to provide a privilege log or to otherwise meet its burden of establishing the existence of a privilege as to any of the documents at issue. Finally, even to the extent that Defendant has attempted to lodge any untimely objections on the basis of privilege, it has failed to do so “with specificity” and to demonstrate “good cause” for its tardiness, as required by Rule 33(b)(4), and failed to “state whether any documents are being withheld on the basis of that objection[,]” as required by Rule 34(b)(2)(C).”

Judge Patti also ordered the defendant (which had previously served unsigned responses to Plaintiff’s first set of interrogatories) to “serve signed, sworn responses to Plaintiff’s first set of interrogatories by February 19, 2019, without objections, all objections having been waived pursuant to Fed. R. Civ. P 33(b)(4).”  He also ruled on several specific discovery requests still at issue that had been agreed to at a hearing.

Judge Patti also noted that “Rule 37 ‘provides generally for sanctions against parties or persons unjustifiably resisting discovery’” and stated that “Plaintiff is entitled to her reasonable expenses incurred in bringing her motion to compel, because the motion was necessary, Defendant’s failure to timely respond to discovery was not substantially justified, and there are no other circumstances that make an award of expenses unjust. Because the motion was granted in part, with Plaintiff obtaining nearly all of the relief sought, the Court will apportion the award and reduce it by fifteen percent, after calculating the total reasonable attorney fee associated with this motion.”  As a result, Judge Patti ordered the plaintiff to “submit a bill of costs, or stipulated bill of costs, by February 19, 2019 for time incurred ‘for the motion,’ including time drafting the instant motion to compel, reply, and the joint statement, and time traveling to and from and spent attending the hearing”.

So, what do you think?  Should untimely objections always be waived or should special circumstances be considered?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Discovery Can’t Be Stayed While Motion to Dismiss is Considered, Court Says: eDiscovery Case Law

In Udeen v. Subaru of America, Inc., No. 18-17334(RBK/JS) (D.N.J. Mar. 12, 2019), New Jersey Magistrate Judge Joel Schneider denied the defendants’ request that all discovery be stayed until their Motion to Dismiss is decided, but, with the proviso that only limited and focused discovery on core issues would be permitted.

Case Background

In this nationwide class action with allegations that the defendant’s defective infotainment system creates a safety hazard, the defendants filed a Motion to Dismiss on February 28, 2019 and requested that all discovery be stayed until their motion was decided.  The plaintiffs opposed the defendants’ request, so the Court received the parties’ letter briefs and held oral argument.

Judge’s Ruling

In evaluating the defendant’s motion, Judge Schneider said: “The Court agrees that plaintiffs will be prejudiced if all discovery is stayed while waiting for defendants’ motion to be decided. Given the extensive briefing on defendants’ motion and the expected time it will take for the motion to be decided, the case will be in suspense for months if defendants’ request is granted. Having filed their complaint plaintiffs have a right to move forward… This is especially true in a case where plaintiffs claim the alleged defect in defendants’ vehicles is a safety hazard. Further, the longer the case languishes the greater chance exists that relevant evidence may be lost or destroyed.”

Judge Schneider also noted: “Defendants’ concern about ‘extremely expensive’ discovery is overblown. As is always the case, the Court expects to closely manage discovery to assure that plaintiffs’ efforts are proportional. Further, contrary to defendants’ argument, a discovery stay will not simplify the issues for trial. In fact, the opposite is true. The parties initial discovery will focus on the core issues in the case to assure that only the most relevant and important discovery is produced. This discovery will be produced no matter what claims remain in the case. The discovery will serve to educate plaintiffs concerning the most important individuals and issues in the case. In the long run the Court expects defendants to benefit from this staging so that the parties do not chase discovery ‘down a rabbit hole.’”

As a result, Judge Schneider stated: “After examining all relevant evidence, the Court finds the relevant factors weigh in plaintiffs’ favor and, therefore, the Court will deny defendants’ request to stay all discovery.”  So, Judge Schneider ordered both the defendants and plaintiffs to produce certain documents and for the parties to meet and confer regarding certain other documents, noting: “The Court also finds that defendants’ documents in Japan are not necessarily off-limits. However, the Court is concerned plaintiffs’ requests are too broad. The Court will only permit narrow and focused discovery requests asking for core information. The parties meet and confer discussions shall also address plaintiffs’ request for third-party discovery. To the extent the parties cannot agree on the discovery to be produced, simultaneous letter briefs shall be served by April 15, 2019”.

So, what do you think?  Should discovery ever be stayed because a motion to dismiss is pending?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Hat tip to Jeff Dreiling and the Complete Legal blog for the tip about the case!

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Defendants to Comply with Rule 26(a), Ditch the Boilerplate Objections: eDiscovery Case Law

In RightCHOICE Managed Care, Inc. v. Hospital Partners, Inc., No. 5:18-cv-06037-DGK (W.D. Mo. Feb. 1, 2019), Missouri District Judge Greg Kays ordered the discovery defendants to “supplement their initial disclosures so that they comply with Rule 26(a)” (within 14 days) and “either respond to Plaintiffs’ interrogatories and requests for production in good faith or specifically tailor their objections to each question or request”, as well as requiring each discovery defendant to “prepare a statement identifying the steps taken to preserve discoverable information”, among other things.

Case Background

In this case involving alleged improper billing of lab tests, the parties conferred under Federal Rule of Civil Procedure 26(f) in October 2018.  The plaintiffs served the discovery defendants with interrogatories and requests for production of documents the following week. The discovery defendants responded on November 26, objecting to every one of the plaintiffs’ questions and requests, using language like this:

“Defendant objects to this request as vague, overly broad, unduly burdensome, harassing, and/or seeking information that is irrelevant and/or not reasonably calculated to lead to the discovery of admissible evidence.”

On January 24, the Court held a teleconference hearing to discuss the dispute. During the hearing, the plaintiffs stated that the discovery defendants failed to identify any witnesses in their Rule 26(a)(1) initial disclosures, made boilerplate objections to every interrogatory, and improperly invoked the Fifth Amendment. When the Court asked the discovery defendants’ counsel whether they had produced a single document in the case, he “enthusiastically” replied, “Nope.”

As a result, the plaintiffs requested that the Court order the discovery defendants to (1) amend their initial disclosures; (2) produce responsive, non-privileged documents requested from Hospital Partners and Empower H.I.S.; (3) specify exactly which interrogatories Byrns and Perez object to on the basis of the privilege against self-incrimination; (4) answer Plaintiffs’ interrogatories in good faith or have adverse inferences drawn from their refusal; and (5) each provide a sworn statement identifying the steps taken to preserve discoverable information. Not surprisingly, the discovery defendants asked the Court to deny these requests.

Judge’s Ruling

Noting that “Rule 26(a)(1) requires litigants to provide ‘the name and, if known, the address and telephone number of each individual likely to have discoverable information’”, Judge Kays stated that the discovery defendants’ disclosures – which merely listed “corporate representative[s]” of various unnamed entities, such as “any billing/management vendors of the Defendants, with no specific reference to the information held by the entities and no address or phone numbers – “fail to comply with Rule 26(a)(1)”.  Judge Kays ordered the discovery defendants to “supplement their initial disclosures with the specific names and contact information, if known, of individuals likely to have discoverable information.”  He also indicated that they “must also provide copies of, or a list detailing, by category and location, all documents, electronically stored information, and tangible things in their possession, custody, or control that they may use to support their claims or defenses.”

Judge Kays also rejected the discovery defendants’ use of the Fifth Amendment privilege against self-incrimination, stating: “Their invocation is invalid. To begin, the Fifth Amendment does not protect Hospital Partners and Empower H.I.S. because they are artificial legal entities” (despite the discovery defendants’ claims that they are “alter egos of the individual defendants”.  As a result, he ordered defendants Hospital Partners and Empower H.I.S. “to produce relevant, non-privileged documents and respond to Plaintiffs’ interrogatories” and also ordered defendants Byrns and Perez “to produce all relevant, non-privileged business records in their possession” and to “contour their Fifth Amendment objections to each particular interrogatory, so that, if necessary, the Court can make a question-by-question judgment on the privilege’s applicability.”

As for the boilerplate objections, Judge Kays ordered the discovery defendants to “either respond to Plaintiffs’ questions and requests or tailor their objections with much greater particularity. If they assert a privilege, they must provide a privilege log.”

Finally, Judge Kays stated that the discovery defendants’ “failure to produce a single document, months into discovery, concerns the Court” and also expressed concerns about the plaintiffs’ allegations that the defendants “have not issued retention notices and {the plaintiffs} are unaware of the location of Empower H.I.S.’s records.”  As a result, Judge Kays agreed with the plaintiffs that “the Discovery Defendants each need to prepare a sworn statement detailing their efforts to preserve discoverable information” and noted that if the discovery defendants’ behavior were to continue, “the Court will consider imposing sanctions.”

So, what do you think?  Should the defendants have already been sanctioned, or is that premature?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Granted Discovery Extension Due to Defendant’s TAR Review Glitch: eDiscovery Case Law

In the case In Re Domestic Airline Travel Antitrust Litigation, MDL Docket No. 2656, Misc. No. 15-1404 (CKK), (D.D.C. Sept. 13, 2018), District of Columbia District Judge Colleen Kollar-Kotelly granted the Plaintiffs’ Motion for an Extension of Fact Discovery Deadlines (over the defendants’ objections) for six months, finding that defendant “United’s production of core documents that varied greatly from the control set in terms of the applicable standards for recall and precision and included a much larger number of non-responsive documents that was anticipated” (United’s core production of 3.5 million documents contained only 600,000 documents that were responsive).

Case Background

In the case involves a multidistrict class action litigation brought by the plaintiffs (purchasers of air passenger transportation for domestic travel) alleging that the defendant airlines willingly conspired to engage in unlawful restraint of trade, the plaintiffs filed an instant Motion for Extension of Time to Complete Discovery, requesting an extension of six months, predicated on an “issue with United’s ‘core’ document production,” asserting that defendant United produced more than 3.5 million [core] documents to the Plaintiffs, but “due to United’s technology assisted review process (‘TAR’), only approximately 17%, or 600,000, of the documents produced are responsive to Plaintiffs’ requests,” and the plaintiffs (despite having staffed their discovery review with 70 attorneys) required additional time to sort through them.

Both defendants (Delta and United) opposed the plaintiffs’ request for an extension, questioning whether the plaintiffs had staffed the document review with 70 attorneys and suggesting the Court review the plaintiffs’ counsel’s monthly time sheets to verify that statement.  Delta also questioned by it would take the plaintiffs so long to review the documents and tried to extrapolate how long it would take to review the entire set of documents based on a review of 3 documents per minute (an analysis that the plaintiffs called “preposterous”).  United indicated that it engaged “over 180 temporary contract attorneys to accomplish its document production and privilege log process within the deadlines” set by the Court, so the plaintiffs should be expected to engage in the same expenditure of resources.  But, the plaintiffs contended that they “could not have foreseen United’s voluminous document production made up [of] predominantly non-responsive documents resulting from its deficient TAR process when they jointly proposed an extension of the fact discovery deadline in February 2018.”

Judge’s Ruling

Judge Kollar-Kotelly noted that “Plaintiffs contend that a showing of diligence involves three factors — (1) whether the moving party diligently assisted the Court in developing a workable scheduling order; (2) that despite the diligence, the moving party cannot comply with the order due to unforeseen or unanticipated matters; and (3) that the party diligently sought an amendment of the schedule once it became apparent that it could not comply without some modification of the schedule.”  She noted that “there is no dispute that the parties diligently assisted the Court in developing workable scheduling orders through their preparation of Joint Status Reports prior to the status conferences in which discovery issues and scheduling were discussed, and in their meetings with the Special Master, who is handling discovery matters in this case.”

Judge Kollar-Kotelly also observed that “United’s core production of 3.5 million documents — containing numerous nonresponsive documents — was unanticipated by Plaintiffs, considering the circumstances leading up to that production” and that “Plaintiffs devoted considerable resources to the review of the United documents prior to filing this motion seeking an extension”.  Finding also that “Plaintiffs’ claim of prejudice in not having the deadlines extended far outweighs any inconvenience that Defendants will experience if the deadlines are extended”, Judge Kollar-Kotelly found “that Plaintiffs have demonstrated good cause to warrant an extension of deadlines in this case based upon Plaintiffs’ demonstration of diligence and a showing of nominal prejudice to the Defendants, if an extension is granted, while Plaintiffs will be greatly prejudiced if the extension is not granted.”  As a result, she granted the motion to request the extension.

So, what do you think?  Was the court right to have granted the extension?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Also, if you’re going to be in Houston on Thursday, September 27, just a reminder that I will be speaking at the second annual Legal Technology Showcase & Conference, hosted by the Women in eDiscovery (WiE), Houston Chapter, South Texas College of Law and the Association of Certified E-Discovery Specialists (ACEDS).  I’ll be part of the panel discussion AI and TAR for Legal: Use Cases for Discovery and Beyond at 3:00pm and CloudNine is also a Premier Platinum Sponsor for the event (as well as an Exhibitor, so you can come learn about us too).  Click here to register!

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

2017 eDiscovery Case Law Year in Review, Part 1

Once again, it’s time for our annual review of eDiscovery case law!  This is our seventh annual review of cases that we covered on the eDiscovery Daily blog over the past year.  As always, we had a number of interesting cases related to various eDiscovery topics.  So, as we have done for the last six(!) years, let’s take a look back at 2017!

Last year, eDiscoveryDaily published 78 posts related to eDiscovery case decisions and activities over the past year, covering 62 unique cases!  We’ve had nearly 600 lifetime case law related posts, covering over 440 unique cases since our inception back in 2010.  And, believe it or not, we still didn’t cover every case that had eDiscovery impact.  Sometimes, you want to cover other topics too.

Nonetheless, as always for the cases we did cover, we grouped them into common subject themes and will review them over the next few posts (a few of them could be categorized in more than one category, so we took our best shot).  Perhaps you missed some of these?  Now is your chance to catch up!

It’s also worth noting that Tom O’Connor and I will be discussing some of these cases – and what the legal profession can learn from those rulings – on Thursday’s webcast Important eDiscovery Case Law Decisions of 2017 and Their Impact on 2018 at noon CT (1pm ET, 10am PT).  The webcast is CLE accredited in selected states, so come check it out!

And, here we go…

ADMISSIBILITY, PROPORTIONALITY AND COOPERATION

Can’t we all just get along?  Again this year, there were plenty of disputes the scope and content of production.  Oh, and how would you like to have $10M shaved off your bill for document review?  Here are fourteen cases related to admissibility of ESI and the proportionality for preserving and producing that ESI:

Judge Cuts Over $10M from Attorney Fees Due to Use of Temporary Attorneys for Document Review: The use of temporary associates for document review (and billing at normal staff associate rates) caused a federal judge in Manhattan to reduce the request for attorney fees by $10.3 million in a settlement of a securities case against Bank of America.

Court Defines Narrowed Scope for Requests for Social Media Data: In Scott v. United States Postal Service, Louisiana Magistrate Judge Erin Wilder-Doomes granted the defendant’s Motion to Compel Discovery in part, ordering the plaintiff to provide complete responses to the defendant’s interrogatory and request for production, but only after she limited the scope of both requests, determining them to be “overly broad”.

Court Denies Untimely Motion to Compel Production of Text Messages: In Healthwerks, Inc. et. al. v. Stryker Spine, et. al., 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.

Lack of Cooperation Leads to Court to Order Scope of Discovery for Defendant: In Bird v. Wells Fargo Bank, 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.

Court Approves Defendant’s Proposed Random Sampling Production Plan: In Duffy v. Lawrence Memorial Hospital, 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.

Despite Parties’ “Significant Animosity”, Court Orders Them to Meet and Confer: In Elhannon LLC v. F.A. Bartlett Tree Expert Co., Vermont District Judge William K. Sessions, III granted in part and denied in part the plaintiff’s renewed motion to compel, denied motions for sanction by each party against the other, and ordered the parties to engage in further meet-and-confer efforts to narrow their differences on the appropriate scope of discovery.

Court Limits Burden for Defendant to Search Loan Numbers, Splits Costs Between Parties: In Phoenix Light SF Ltd. v. Deutsche Bank Nat’l Trust Co., New York Magistrate Judge Debra Freeman granted the plaintiffs’ motion to compel in part, ordering the defendant to search for 16,000 loan numbers proposed by the plaintiffs’ and ordered the parties to split the costs for performing the searches.

Plaintiff Can Review Documents Deemed as Non-Responsive, But Has to Bear its Own Costs: In Nachurs Alpine Solutions, Corp. v. Banks, Iowa Chief Magistrate Judge C. J. Williams granted in part and denied in part the plaintiff’s motion to compel ESI discovery, by ordering the defendants to produce all of the ESI documents it identified as unresponsive under an Attorneys Eyes Only label and that the plaintiff bear its own costs of reviewing the documents for the categories it believes may hold relevant documents.

Court Denies Plaintiff’s Request for Defendant’s Source Code Production: In Congoo, LLC v. Revcontent LLC, et al, New Jersey Magistrate Judge Tonianne J. Bongiovanni, finding that the plaintiff “has not met its burden of demonstrating that production of the source code is relevant and necessary”, denied the plaintiff’s Motion to Compel the inspection and production of the defendants’ source code.

Defendant’s Request for Social Media Data is Reasonably Calculated to Be Overbroad: In Ehrenberg v. State Farm Mut. Auto. Ins. Co., Louisiana Magistrate Judge Janis van Meerveld, rejecting the defendant’s request for the plaintiff’s social media data as “reasonably calculated to lead to the discovery of admissible evidence”, identified a level of social media data to be produced by the plaintiff that considered “weighing relevance and proportionality”.

Court Adds Some of the Custodians Requested by Plaintiffs to Discovery, But Not All: In Mann, et al. v. City of Chicago, et al, Illinois Magistrate Judge Mary M. Rowland granted in part and denied in part the plaintiffs’ Motion to Compel the defendant to include certain custodians in their email search, ordering the defendant to search emails of five additional custodians (including the Mayor of Chicago), but not requiring the defendant to search emails for an additional three custodians requested by the plaintiff.  Judge Rowland also denied the plaintiffs’ request for sanctions, finding that the defendant’s conduct was not sanctionable.

Court Denies Motions to Compel Against Various Defendants, For Various Reasons: In Blosser v. Ashcroft, Inc., et al., Washington District Judge Benjamin H. Settle settled this dispute for now between the plaintiffs and three defendants over discovery disputes by denying the plaintiffs’ motions to compel against all three defendants, two of them without prejudice.

Court Chastises Parties for Turning Case into a “Discovery Slugfest”: In UnitedHealthcare of Fla., Inc. et al. v. Am. Renal Assoc., Inc. et al., Florida Magistrate Judge William Matthewman granted in part and denied in part the plaintiffs’ Motion for Reconsideration or Modification of Omnibus Discovery Order, clarifying the Court’s previous order regarding custodians and search terms, while denying the remainder of the plaintiff’s motion.  Judge Matthewman also chastised both parties for their lack of cooperation on search terms.

No Dismissal of Claim Against Defendant Accused of Transferring Company Info to Dropbox Account: In Abbott Labs. v. Finkel, Colorado District Judge Christine M. Arguello denied the defendant-movant’s motion to dismiss the plaintiff-respondent’s conversion claim that the defendant disclosed the plaintiff’s confidential information and trade secrets to a third party and transferred that information to his personal online cloud storage Dropbox account.

EDISCOVERY COST REIMBURSEMENT

We usually have at least a couple of rulings related to reimbursement of eDiscovery costs and legal fees, but we don’t usually get a SCOTUS decision in the mix.  Here are two cases related to eDiscovery cost and legal fee reimbursement.

SCOTUS Reverses and Remands Circuit Court Award of Fees for Discovery Misconduct: In Goodyear Tire & Rubber Co. v. Haeger, 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.”

Court Grants Most of Plaintiff’s Cost Recovery Request, Including All eDiscovery Costs: In Ariel Inv., LLC v. Ariel Capital Advisors LLC, Illinois District Judge Matthew F. Kennelly granted the prevailing plaintiff’s request to tax most requested costs in the amount of $99,378.32, including the entire amount ($85,666.51) requested for reimbursement for eDiscovery costs.

We’re just getting started!  Tomorrow, we will cover cases related to discovery about discovery, technology assisted review, form of production disputes, objections to production requests and an interesting dispute between an eDiscovery provider and their former sales people.  Stay tuned!

Want to take a look at cases we covered the previous six years?  Here they are:

So, what do you think?  Did you miss any of these?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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 Chastises Parties for Turning Case into a “Discovery Slugfest”: eDiscovery Case Law

In UnitedHealthcare of Fla., Inc. et al. v. Am. Renal Assoc., Inc. et al., No. 16-cv-81180-Marra/Matthewman (S.D. Fla. Oct. 20, 2017), Florida Magistrate Judge William Matthewman granted in part and denied in part the plaintiffs’ Motion for Reconsideration or Modification of Omnibus Discovery Order, clarifying the Court’s previous order regarding custodians and search terms, while denying the remainder of the plaintiff’s motion.  Judge Matthewman also chastised both parties for their lack of cooperation on search terms.

In the Court’s August order, the Court permitted Defendants to select an additional 16 custodians and an additional 12 search terms and to request more at a later date if Defendants have a good-faith basis to do so and also ruled that the defendants had not waived any privilege and did not have to produce a privilege log.

In the current Motion, the plaintiffs argued that the Court should reconsider or modify its Order because the Court never made a finding that Plaintiffs’ production was deficient, there is no evidence that would support such a conclusion, the Court did not tailor the additional custodians or search terms to “any purported inadequacy nor to any proportionality limits”, the Court did not “provide any mechanism for ensuring that ARA’s custodians and search terms do not capture an overwhelmingly, burdensome, disproportionate amount of information”, and the Court’s Order was “patently unfair”.  The plaintiffs also argued that the Court should reconsider its decision not to compel the defendants to provide a privilege log because they “wrongfully withheld a responsive, non-privileged document, and the Court should not rely on Defendants’ counsel’s representations that they have no additional non-privileged responsive documents.”

Noting that “the only asserted new evidence submitted by Plaintiffs consists of Docket Entries 303-1 through 303-4” (which included email correspondence, a list of the additional 16 custodians, a list of additional 12 search terms and a Declaration from the Director of e-Discovery at the plaintiff company), Judge Matthewman focused on the last paragraph of the Declaration, which stated:

“In my opinion and based on my experience, if additional time is taken to reexamine the search terms to minimize some of the more obvious deficiencies and then, after the search terms are run, allow for the parties to evaluate which terms hit on an excessive number of documents and narrow them accordingly, the process could be sped up significantly as the volume of documents for the steps after collection and indexing will likely be greatly reduced.”

In response, Judge Matthewman stated: “Ironically, this type of cooperation is exactly what this Court has been expecting from the parties and their counsel throughout this case—to work together to arrive at reasonable search terms, to run those search terms and engage in sampling to see if the search terms are producing responsive documents or excessive irrelevant hits, and then to continue to refine the search terms in a cooperative, professional effort until the search terms are appropriately refined and produce relevant documents without including an excessive number of irrelevant documents. However, despite what paragraph 12 of the Declaration suggests, and despite this Court’s suggestions to the parties and their counsel as to the cooperative and professional manner in which the parties should engage in the e-discovery process in this case, there has instead been an apparent lack of cooperation and constant bickering over discovery, especially e-discovery. The alleged new evidence submitted by Plaintiffs, that is, the list of additional search terms and custodians and the Declaration, clearly show that, where, as here, parties in a large civil case do not cooperatively engage in the e-discovery process, the collection and indexing of documents and the production of relevant documents, become much more difficult.”

Indicating that “the parties and their counsel, through their many discovery disputes and their litigiousness, have unnecessarily turned this case into what can best be termed as a ‘discovery slugfest’”, Judge Matthewman noted that “the parties have filed well over 50 discovery motions, responses, replies, notices, and declarations, many of which have been filed under seal” and that the Court “has held at least six discovery hearings in 2017, most of which were lengthy and contentious.”

Judge Matthewman also referenced several resources regarding cooperation for the parties to consider, including The Sedona Conference, the Federal Judges’ Guide to Discovery, as well as comments from Supreme Court Chief Justice John Roberts regarding the 2015 Amendments to Federal Rules of Civil Procedure 1 and 26.  With that in mind, Judge William granted in part and denied in part the plaintiffs’ Motion for Reconsideration or Modification of Omnibus Discovery Order, clarifying the Court’s previous order regarding custodians and search terms, while denying the remainder of the plaintiff’s motion, including their dispute over the number of custodians and search terms and the failure to require the defendants to produce a privilege log.

So, what do you think?  What can we learn from the parties’ lack of cooperation in this case?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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.