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Proportionality

Increasing Your Technological Competence, Part 1

From the CloudNine family to yours, we wish you a wonderful holiday season! As a gift of knowledge, this article will focus on defining and maintaining high levels of technological competence. To effectively represent their clients, a lawyer must actively update their knowledge on legislative changes. The American Bar Association referred to this skill in Rule 1.1 as “competence.” The rule originally called for lawyers to possess the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” [1] In 2012, the ABA expanded the definition through an amendment concerning technological competence. According to Matthew Knouff from ESI Survival Guide, 39 states adopted this rule in some form by March 2021. South Dakota, Rhode Island, Oregon, New Jersey, Nevada, Mississippi, Maryland, Maine, Hawaii, Georgia, and Alabama are the main exceptions to this trend. [2] Though Rule 1.1’s amendment laid out the framework, it didn’t provide instructions on how lawyers should build their technological competence. To achieve this duty, the California Bar committee issued an opinion, outlining 9 necessary skills. Since this opinion was crafted through examinations of federal cases, these skills could be applicable to various states.

Explanations of the First Five Skills

  1. Initially assess e-discovery needs and issues, if any.

In fear of the cost and rules of e-discovery, some lawyers try to avoid the practice altogether. By doing so, lawyers disadvantage their clients by missing out on relevant ESI. Instead of yielding to eDiscovery trepidation, conduct an initial assessment to determine the cost, timeframe, and data types needed for the investigation. Consider the value of the claims in comparison with the costs of processing and production. Determining which data types must be collected and how much time is allotted for the process. These examinations can act as a starting point in assessing the proportionality of the production request.

  1. Implement or cause to implement appropriate ESI preservation procedures.

To accomplish this skill, lawyers should acquaint themselves with their client’s IT setup. Once the preservation responsibilities have been established, clients and custodians should be informed with clear, written instructions. It’s important to follow up with clients and custodians to ensure that they are complying with the preservation requirements to avoid spoliation sanctions. If requesting ESI from opposing counsel, send a preservation letter that identifies what data should be preserved and where it can be found.

  1. Analyze and understand a client’s systems and storage.

Get familiar with your client’s IT environment and staff. It’s beneficial to request data maps of complex systems and speak directly to the IT staff. Through this knowledge and ease in communication, lawyers will gain a better sense of where relevant ESI may lie. After determining the location of the data, one can access how difficult and/or expensive it will be to access the information.

  1. Advise the client about available options for collection and preservation of ESI.

The scope and cost of preservation might be huge when dealing with larger companies due to their larger volumes of data and longer lists of custodians. However, lawyers should not concern themselves with burdensome collections unless the information is proportional to the case. During Rule 26(f) conferences, consult opposing counsel on the scope of discovery in relation to the costs of collection and production. If the parties determine that the discovery request is disproportional, seek guidance from the court.

  1. Identify custodians of relevant ESI.

After identifying the custodians who possess relevant data, categorize the list into two categories: primary custodians and secondary custodians. As the terms suggest, primary custodians have more direct involvement with the information than secondary custodians. To save money, counsel can decide to initially search for primary custodians within a limited time frame. If necessary and proportional, the search can be expanded to encompass secondary custodians. [3]

 

[1] Model Rules of Professional Conduct Rule 1.1

[2] Matthew Knouff, “How to Gain & Maintain Technology Competence — Element 1: Education — Part 1 of 3,” March 30, 2021.

[3] Hon. Joy Flowers Conti and Richard N. Lettieri, “E-Discovery Ethics: Emerging Standards of Technological Competence,” The Federal Lawyer, 2015.

Assessing the Proportionality of Modern Data Types

The Costs of eDiscovery

As time passes, the definition of electronically stored information (ESI) must expand to accommodate emerging data types. As discussed in our recent article, (Don’t Get Spooked by Communication Applications!), these changes can be intimidating and uncomfortable for some legal teams. Since modern data types are unavoidable in eDiscovery, litigators must adapt and address any subsequent challenges. Financing the production of newer ESI types is a looming concern for many firms. From a financial perspective, each gigabyte of reviewed data costs about $18,000. [1] Meanwhile, 300 million photos are posted to social media every day, and 16 million texts are sent every minute. [2] In addition to paying for production, responding parties must  have adequate access and resources to manage the information. If responding parties cannot juggle these duties, they should speak with the judge and requesting party about the proportionality of the evidence.

Proportionality and Amendments to Rule 26(b)(1)

Before requesting the production of digital evidence in a legal trial, the proportionality of said evidence must be evaluated. In other words, the costs and benefits of production must be weighed. Proportionality is far from a new concept in eDiscovery. Most of its factors and considerations were first added to Rule 26(b)(1) of the FRCP in 1983. On December 1, 2015, the rule was amended slightly to require that the scope of discovery be “proportional to the needs of the case.” [3] Six factors should be considered when evaluating the proportionality of ESI:

  • The importance of the issues at stake in the action – This guideline measures the importance of the non-monetary losses or gains that a party might acquire due to a case (i.e. time, resources).
  • The amount of controversy – This guideline focuses on the money that a party may gain or lose.
  • The parties’ access to relevant information – The need for a formal discovery is determined based on a party’s access (or lack thereof) to relevant information.
  • The parties’ resources – A party’s technological, administrative, and human resources are assessed to determine if they are capable of handling the discovery process.
  • The importance of the discovery in resolving the issues – This guideline relates to the discovery’s importance in resolving the case.
  • Whether the burden or expense of the proposed discovery outweighs its likely benefit – The burdens and benefits of discovery are compared. There is no fixed ratio to determine the proportionality. [4]

Proportionality Best Practices

  • Parties should engage in discovery planning early on. Discussions on the relevance and proportionality of the request should be held as soon as possible.
  • Prior to Rule 26(f), meet in person (or over the phone) to develop a discovery management plan.
  • Ask the judge to hold Rule 16(b) case-management conferences.
  • If you anticipate proportionality disputes or the production of voluminous data, start the discovery process by producing the most accessible and relevant information . [4]

 

[1] Patrick E. Gaas and Tiffany Harrod, “How to Proactively Control E-discovery Costs,” Tech Brief, AGC of America.

[2] Bernard Marr, “How Much Data Do We Create Every Day? The Mind-blowing Stats Everyone Should Read,” Forbes, May 21, 2018.

[3] “Rule 26. Duty to Disclose; General Provisions Governing Discovery,” Legal Information Institute, Cornell Law School,

[4] Bolch Judicial Institute, “Guidelines and Best Practices for Implementing the 2015 Discovery Amendments Concerning Proportionality,” Third Edition, 2021.

Court Denies Petitioners’ Motion to Quash, But Also Finds Subpoena Is Not Within Scope of Discovery: eDiscovery Case Law

In the case In re Verizon Wireless, Nos.: TDC-19-1744 | TDC-19-1799 | TDC-19-1806 | TDC-19-1808 | TDC-19-2118 | TDC-19-2119 | TDC-19-2120 | TDC-19-2121 | TDC-19-2122 | TDC-19-2123 (D. Md. Sept. 16, 2019), Maryland Magistrate Judge Charles B. Day denied the petitioners’ Motions to Quash the respondents’ subpoena, finding that the petitioners did not have sufficient standing to have the subpoena quashed for phone numbers owned by Prince George’s County.  However, Judge Day also found that the subpoena was overbroad and was not within the scope of discovery and, as a result, granted the petitioners’ Motions for Protective Orders.

Case Background

In this case involving claims of discrimination and retaliation against officers of color, the plaintiffs in the case served a subpoena on non-party Verizon Wireless in May 2019 seeking information as follows concerning 11 phone numbers identified in the subpoena:

“Records relating to the phone numbers attached…for the period January 1, 2016 through the present, including the time, date, duration, and destination/origin phone number for all incoming/outgoing calls, and the time, date, destination/origin phone number, and content for all text messages.”

The petitioners filed respective Motions to Quash in June 2019.  In July 2019, the plaintiffs informed Verizon by letter that they were withdrawing their subpoena request for text message records associated with the phone numbers and filed oppositions to the Named-Defendants’ Motions to Quash the same day (and filed oppositions to the Nonparty Petitioners’ Motions to Quash in August).  Later in July, the Named-Defendants filed replies to Plaintiffs’ Oppositions.

The petitioners argued that: 1) the subpoena was overly broad as it sought records and text content relating to a phone number for an entire three-year period without limiting the scope to the allegations raised in the Amended Complaint; 2) it was not reasonably calculated to lead to the discovery of admissible information and that it is not proportional to the needs of the case; and 3) even though Prince George’s County owns most of the phone numbers and issued them to employees to be used for conducting official business, the subpoena would capture not only “privileged and personal” information (such as communications with family or medical providers), it would also capture information about irrelevant police business.

Judge’s Ruling

Noting that Prince George’s County’s Electronic Information Policy “specifically states that employees have ‘no expectation of privacy regarding any information created, sent, received, or stored through or by Prince George’s County Governments electronic information systems’”, Judge Day stated: “The policy contains no caveat for disclosures to third parties, this includes the incidental personal use that is permitted by the policy. In short, while it may be permitted use, the employee is on notice that he or she should have no expectation of privacy when he or she uses a county-owned phone number.”  As a result, Judge Day ruled: “Petitioners do not have the requisite standing to have the Subpoena quashed” and denied the Motions to Quash.

However, Judge Day went on to state: “While the door of ‘standing’ is closed and locked, Petitioners effectively obtain the relief through another door regarding the scope of discovery. As discussed earlier, Petitioners contend that the Subpoena is overbroad and not proportional to the needs of this case. While they have not provided justification to have the Subpoena quashed, they do have standing to challenge the Subpoena for purposes of obtaining a protective order.”  Referring to the “storehouses of phone numbers, dates, and times of calls that would be injected into this case that have no relation to the claims and defenses of the parties” as “troubling”, Judge Day stated that “the broad swath of information sought here is not justifiable” and that “Respondents ask for too much to obtain too little”.  As a result, Judge Day granted the petitioners request that a protective order be put in place to prohibit the plaintiffs from seeking this information in the future.

So, what do you think?  Should producing a list of phone logs be considered unduly burdensome?  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.

Court Orders Plaintiff to Share in Discovery Costs of Non-Party: eDiscovery Case Law

In Lotus Indus., LLC v. Archer, No. 2:17-cv-13482 (E.D. Mich. May 24, 2019), Michigan Magistrate Judge Anthony P. Patti granted in part and denied in part without prejudice non-party City of Detroit Downtown Development Authority’s (DDA) motion for protective order in connection with the Court’s order granting in part and denying in part the plaintiff’s motion to compel documents requested by subpoena, ordering the plaintiff to pay some of DDA’s discovery costs, but not as much as DDA requested.

Case Background

In this civil RICO and First Amendment retaliation case associated with redevelopment of property in Detroit, the Plaintiff filed a motion to compel production of documents requested in his September 2018 subpoena to nonparty DDA in January 2019.  A hearing was held on the plaintiff’s motion on March 26, 2019, after which the Court entered an order granting in part and denying in part Plaintiff’s motion, ordering DDA to produce, by April 26, 2019, documents responsive to Request Nos. 4-6 of Plaintiff’s subpoena for the November 19, 2016 to present time period, and to produce a privilege log for any documents withheld on the basis of privilege.

On April 19, 2019, DDA filed the instant motion for protective order, seeking an extension of time to produce responsive documents and requesting that the plaintiff pay DDA its share of the expenses of production before being obligated to begin to comply with the Court’s order, contending that the volume of potentially responsive documents was substantially larger than anticipated (48.5 GB of data) and would impose a significant expense on DDA to produce and require far more time to complete than allowed by the Court’s order.  DDA initially anticipated the total expense of production at $127,653.00, which included $21,875.00 in costs to upload the data and approximately $105,778.00 in attorney’s fees in connection with a privilege review. DDA requested Plaintiff pay the $21,875 in costs and 25% of the anticipated attorney’s fees ($26,444.50); in response, the plaintiff opposed that motion and questioned why the costs were so high.

At the May 8, 2019 hearing on the motion, the parties agreed on new search terms to further refine the number of responsive documents and the Court scheduled a status conference for May 23, 2019 to discuss the results of that search. On May 22, 2019, DDA submitted a supplemental brief explaining that the revised search yielded 8.5 GB of data that must be reviewed for privilege, at a cost of $2,125.00 to upload the data to counsel’s eDiscovery platform and anticipated costs of $44,705.00 in attorneys’ fees to conduct a privilege review, so it sought an order for the plaintiff to pay DDA $2,125.00 in costs and $11,176.25 in attorneys’ fees (still 25% of the total attorneys’ fees anticipated).

Judge’s Ruling

Judge Patti found that “DDA has sufficiently established that it will be forced to incur $2,125.00 in fixed costs to upload the 8.5 GB of data to its third-party e-discovery platform in order to review it for production, and that it anticipates incurring $44,705 in attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production.”

He also noted that “DDA has demonstrated that it has no interest in the outcome of this litigation, as it is not a party and Plaintiff’s prior case against it was dismissed as a sanction for Plaintiff’s ‘repeated misrepresentations’ and ‘failures to comply with discovery orders — despite warnings and the imposition of less severe sanctions…While DDA may more readily bear the expense of production than Plaintiff, that factor alone does not dictate that Plaintiff is relieved of the obligation to pay for some of the expense of production, particularly where this litigation has no particularized public importance and considering the ‘unusual circumstances’ in this case, including that Plaintiff’s prior lawsuit against the DDA was dismissed as a sanction, and he and his clients have been at the receiving end of multiple sanction awards in related and unrelated litigation, significant portions of which this particular plaintiff and his counsel have apparently failed to pay…In addition, the subpoena was directed in part at the general counsel for DDA, and Plaintiff should have anticipated that production of documents in response would require a robust privilege review prior to production, especially given the litigation history between Plaintiff and the DDA.”

As a result, DDA’s motion was granted in part and denied in part without prejudice and Judge Patti ordered that:

  1. “Plaintiff must pay to DDA the sum of $4,360.25, which constitutes the $2,125.00 in costs to upload the 8.5 GB of data to DDA’s counsel’s e-discovery platform, and $2,235.25 in attorneys’ fees (5% of the anticipated attorneys’ fees to conduct a privilege review, prepare a privilege log and prepare the non-privileged documents for production).
  2. Plaintiff must deliver the $4,360.25 check payable to City of Detroit Downtown Development Authority (although the check can be delivered to counsel for DDA) on or before 5:00 p.m. Monday, June 3, 2019. Plaintiff shall also promptly certify such payment to the Court, and include a copy of the check.
  3. DDA need not continue further efforts to produce documents until it is paid in full. Once paid, DDA shall have 45 days from that date to produce responsive documents, and a privilege log for any documents withheld on the basis of privilege.”

So, what do you think?  Do you agree with the distribution of costs?  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.

Court Grants Motion to Compel Production of Telephone Records from Individual Plaintiff: eDiscovery Case Law

In Siemers v. BNSF Railway Co., No. 8:17-cv-360 (D. Neb. Apr. 8, 2019), Nebraska Magistrate Judge Susan M. Bazis finding that the plaintiff’s telephone records are discoverable pursuant to Fed. R. Civ. P. 26, that they are not subject to a privilege claim just because plaintiff’s counsel’s telephone number may appear in the records and that privacy issues are minimal to non-existent (since the at-issue records do not contain the substance of communications), ordered the plaintiff to produce his telephone records within one week of the order.

Case Background

In this case regarding the plaintiff’s suit against his former employer for alleged violations of the Federal Employers Liability Act (“FELA”), the defendant requested production of the plaintiff’s cellular telephone records from November 1, 2016 (the day before the claimed injury incident that is the basis of Plaintiff’s lawsuit) to present. After the plaintiff refused to produce any records in response to the defendant’s request, a discovery dispute conference was held in October 2018, with the Court finding that the plaintiff’s communications with coworkers or others from the defendant and telephone records evidencing the same were relevant and discoverable, and ordered the parties to further confer regarding production of these items.

The plaintiff then issued a subpoena to his cellular telephone provider and received a listing of incoming and outgoing telephone calls and text messages, but not the substance of any communications. Nonetheless, the plaintiff refused to produce to the defendant the telephone records produced to him in response to his subpoena.

In the final pretrial conference, the defendant argued that the records were discoverable because whether and how often plaintiff has communicated with BNSF coworkers or management since his alleged injury could have credibility considerations, that identifying the fact that a communication occurred between the plaintiff and his attorney was not privileged or, alternatively, that it was not unduly burdensome to redact those references and that no privacy interest was implicated in the telephone records because the records do not contain the substance of any communications.  The plaintiff argued that the defendant’s request was “overbroad on its face and therefore not reasonably calculated to lead to the discovery of relevant information” and also contended that the discovery sought by the defendant was “unreasonably cumulative or duplicative and could have been obtained from other sources that is more convenient, less burdensome, or less expensive.”

Judge’s Ruling

Considering the respective arguments, Judge Bazis ruled as follows:

  1. “Plaintiff’s telephone records from November 1, 2016 to present and any other records received by Plaintiff in response to his subpoena to his cellular telephone provider are discoverable pursuant to Fed. R. Civ. P. 26. BNSF is entitled to discover whether and how often Plaintiff has communicated with coworkers or BNSF management since his alleged injury.
  2. The fact that Plaintiff’s counsel’s telephone number may appear in the records does not render them subject to a privilege claim. Plaintiff may redact references to communications between Plaintiff and Plaintiff’s counsel, which the Court finds is not overly burdensome.
  3. Privacy considerations of Plaintiff or third parties not involved in this litigation are minimal to non-existent since the at-issue records do not contain the substance of communications.”

As a result, Judge Bazis ordered (in all caps, no less) the plaintiff “to produce to BNSF all records received in response to Plaintiff’s subpoena to his cellular telephone carrier” within one week of the order, noting that he could “redact references to communications between Plaintiff’s counsel and Plaintiff (but is not required to do so to maintain privilege claims regarding the substance of the communications).”

So, what do you think?  Was that appropriate or was the defendant’s request overbroad?  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 Denies Plaintiff’s Motion to Compel Production of ESI Related to 34 Searches: eDiscovery Case Law

In Lareau v. Nw. Med. Ctr., No. 2:17-cv-81 (D. Vt. Mar. 27, 2019), Vermont District Judge William K. Sessions III denied the plaintiff’s motion to compel production of ESI related to 34 search terms proposed by the plaintiff during meet and confer with the defendant, based on the extrapolation from a single search term that the plaintiff’s production request would require 170 hours of attorney and paralegal time and would produce little, if any, relevant information.

Case Background

In this case related to claims of wrongful termination stemming (at least in part) from the plaintiff’s disability, the plaintiff initially asked the defendant to produce ESI using 18 search terms. Using only seven of those 18 terms, the defendant produced over 3,000 pages of documents and objected to the scope of the request. The plaintiff moved to compel, and the Court issued an order requiring the parties to confer and agree upon appropriate search terms.

The plaintiff subsequently proposed 34 search terms, some of which were in the original list to which the defendant had objected. The defendant informed plaintiff’s counsel that using just the first four of the proposed 34 terms, it had spent over 20 hours retrieving 2,912 documents totaling 5,336 pages. The plaintiff’s counsel later acknowledged in an email that the initial production was voluminous and unwieldy, and suggested that the defendant use only the newly-proposed search terms.

The defendant made another effort to comply, performing a search using the suggested term “Experian.” The process of searching, coding, and producing reportedly took five hours and identified 472 documents. the defendant represented to the plaintiff’s counsel that few of those documents were relevant. Extrapolating that work to 34 search terms, the defendant contended that the plaintiff’s production request would require 170 hours of attorney and paralegal time and would produce little, if any, relevant information.  As a result, the defendant informed opposing counsel that given the burden of production and the limited relevance of the search results, it would not expend any additional time performing the requested searches. The plaintiff’s counsel invited the defendant to offer additional suggestions as to search terms, but the defendant declined that invitation, leading to the plaintiff’s motion.

Judge’s Ruling

Judge Sessions noted that, under the FRCP, “a party is required to provide ESI unless it shows that the source of such information is ‘not reasonably accessible because of undue burden or cost.’”  With that in mind, Judge Sessions stated:

“Here, the Court ordered cooperation among counsel, and counsel’s efforts did not produce a workable solution. NMC has tried to comply and shown that, to date, the information sought using Lareau’s proposed search terms is not reasonably accessible. Indeed, NMC has expended considerable time and expense producing documents that reportedly have little relevance to this case.”

While noting that he “could nonetheless compel discovery for good cause shown”, Judge Sessions determined that “[h]ere, there has been no such showing.”  Judge Sessions stated: “Since the Court issued its prior Order, NMC has produced 3,384 additional documents containing little relevant information. Without any showing that additional searches are likely to result in a higher rate of success, the Court will not order NMC to engage in further problem-solving.”  As a result, he denied the plaintiff’s motion to compel.

So, what do you think?  Was the defendant’s analysis of expected effort a valid representative sample?  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.

Court Orders Defendant to Respond to Interrogatories to Identify Number of Phone Calls it Made: eDiscovery Case Law

In Franklin v. Ocwen Loan Serv., LLC, No. 18-cv-03333-SI (N.D. Cal. Mar. 12, 2019), California District Judge Susan Illston ordered the defendant to respond to interrogatories, “with, at minimum, information regarding the total number of phone calls defendant made during the relevant period to California residents (including any account associated with a California address and any account containing a California area code)” and ordered the parties to stipulate to a method for extrapolating the total number of recorded phone calls defendant made to California residents during the relevant period.

Case Background

In this case brought by the plaintiff, individually and on behalf of all others similarly situated, for illegal recording of cellular phone conversations pursuant to California Penal Code § 632.7, the plaintiff requested “information related to the number of California residents whose conversations with Defendant were recorded.”  The defendant objected that the request was “unduly burdensome and disproportionate to the needs of the case because responding to them would take thousand[s] or hundreds of thousands of hours of work”, requiring them “to examine each account with a California address or area code, determine if any calls were made on that account, attempt to locate those calls and any recordings of those calls, and then listen to the recordings to determine whether the person being called answered the call and was recorded rather than a message being left on voicemail or someone else answering the call.”  Instead, the defendant proposed that the parties stipulate that it called and recorded a minimum number of persons in California, such as “over 100 persons.”

Judge’s Ruling

Referencing Fed. R. Civ. P. 26(b)(1), Judge Illston stated “The Court agrees with plaintiff that information regarding the number of recorded calls defendant made is relevant to his motion for class certification, going not only to numerosity but also to the question of whether ‘a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.’…It is also relevant, among other things, to the question of damages, particularly in light of the Court’s ruling that ‘plaintiff may seek a class-wide award of statutory damages in an amount up to $5,000 per class member[.]’…It will not suffice for defendant to stipulate to an arbitrary number such as ‘over 100 persons.’”

Both parties cited the case Ronquillo-Griffin v. Transunion Rental Screening Sols., Inc., No. 17-cv-129-JM (BLM), 2018 WL 325051 (S.D. Cal. Jan. 8, 2018), where the district court denied the plaintiff’s motion to compel production of the actual recordings defendant made with the potential class members.  However, Judge Illston stated: “Here, plaintiff is not seeking the recordings themselves but requests the total ‘number of California residents whose conversations with Defendant were recorded.’…This is consistent with what the Ronquillo-Griffin court ordered.”

As a result, Judge Illston ordered the defendant to respond to the plaintiff’s interrogatories, “with, at minimum, information regarding the total number of phone calls defendant made during the relevant period to California residents (including any account associated with a California address and any account containing a California area code)” and ordered the parties to stipulate to a method for extrapolating the total number of recorded phone calls defendant made to California residents during the relevant period – all by March 26, 2019.  Hey, that’s today!

So, what do you think?  Was this the right decision or should the judge have accepted the defendant’s proportionality argument?  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.

Court Denies Non-Party’s Request to Quash Subpoena in Telecommunications Dispute: eDiscovery Case Law

In Fair v. Commc’ns Unlimited Inc., No. 4:17 CV 2391 RWS (E.D. Mo. Jan. 16, 2019), Missouri District Judge Rodney W. Sippel denied the motion to quash discovery filed by non-party Charter Communications (Charter), finding that the plaintiff had demonstrated that she had been unable to obtain the information from the defendants, that her request was not overbroad or unduly burdensome, that the information requested would not disclose personally identifiable information (PII) and that any sensitive or confidential information could be protected with redactions or a protective order.

Case Background

In this dispute regarding alleged misclassification of the plaintiff and other technicians as independent contractors, the court previously granted conditional certification to an opt-in class of Technicians who installed cable on behalf of the defendant.  On May 11, 2018, the plaintiff served a subpoena on Charter, noticing a 30(b)(6) deposition of a corporate representative and requesting four categories of documents: (1) any agreements between Charter and defendants, (2) applications used by Charter to track technicians, (3) technician information stored in those applications, and (4) the size, number, and types of emails exchanged between Charter and defendants during a three year period representing the window of time for which potential opt-in class members would have worked for Defendants.

On July 24, Charter filed this motion to quash the plaintiff’s subpoena, representing that she sought the same information from the defendants three times, and that she had not received any responsive documents by when she served the subpoena, or by August 7, when she filed her response in opposition. After the plaintiff’s second motion to compel against the defendants was granted, they agreed to provide the plaintiff with any agreements they had with Charter, but she continued to maintain “her entire subpoena to Charter is valid.”

Judge’s Ruling

Judge Sippel addressed each of Charter’s arguments for quashing the subpoena, as follows:

  • Any agreements or emails it has exchanged with Defendants and their employees are more conveniently obtained from Defendants: “Fair sought this information from the parties three times before seeking it from Charter”;
  • Fair’s request is overbroad, because it is not related to the narrow question of how Defendants pay their employees: “Charters’ application information, agreements, and emails are also necessary to demonstrate how much control Defendants exercised over the Technicians… As a result, Fair’s request is not overbroad or unduly burdensome.”;
  • Complying with the subpoena would violate customer privacy because it would reveal the addresses of customers: “The only data that Fair seeks from the tracking applications include Technicians’ contact information, identification numbers, and time stamp data…Fair also asks that Charter “identify” certain aspects of the tracking applications, but only in general terms… Charter’s PII argument is without merit.”;
  • The requested information includes sensitive and confidential commercial information: “if any of the requested documents would disclose sensitive or confidential commercial information, Charter can protect that information with redactions or a protective order.”

As a result, Judge Sippel denied Charter’s motion to quash the plaintiff’s subpoena.

So, what do you think?  Was the judge correct in rebutting Charter’s objections?  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.

Court Grants Defendant’s Motion to Compel Various Records from Plaintiff in “Slip and Fall” Case: eDiscovery Case Law

In Hinostroza v. Denny’s Inc., No.: 2:17–cv–02561–RFB–NJK (D. Nev. June 29, 2018), Nevada Magistrate Judge Nancy J. Koppe granted the defendant’s motion to compel discovery various sources of ESI related to the plaintiff’s claim of injuries resulting from a “slip and fall” accident at one of the defendant’s restaurants.

Case Background

In March 2018, the defendant requested various releases from Plaintiff to obtain documents regarding her employment, a prior car accident in 2015, and records from medical providers and the plaintiff provided some of the requested releases in the same month.  In April 2018, the parties met and conferred three times regarding the outstanding releases, as well as the plaintiff’s responses to the defendant’s amended second set of requests for production of documents. When the parties were unable to resolve their discovery disputes, the defendant filed the instant motion to compel the outstanding releases and responses to its requests.

Judge’s Ruling

Noting that the “burden is on the party resisting discovery to show why a discovery request should be denied by specifying in detail, as opposed to general and boilerplate objections, why ‘each request is irrelevant’”, Judge Koppe ruled on each of the following sources of ESI requested by the defendant:

  • Copies of any and all documents related to the 2015 car accident the plaintiff identified in your response to Defendant’s Interrogatory No. 18, as well as information regarding two slip and fall accidents in 2012 where the plaintiff was treated by an orthopedist and a neurologist: Judge Koppe said that “Medical records of injuries prior to an alleged accident are relevant to the issue of whether the injuries existed at the time of the accident and whether the accident caused or aggravated the injuries” and also noted that “police reports and insurance records are relevant because they likely contain statements, photographs, or other information ‘to confirm or refute [a plaintiff’s] allegation [he or she] was not injured’ in an accident”. Because “Courts within the Ninth Circuit have found that medical records and reports dating between three years to ten years prior to an alleged accident are discoverable”, Judge Koppe granted the defendant’s request for this information.
  • Copies of any text messages, emails, or other written communications between either the plaintiff or her counsel and several witnesses and a copy of all text messages or emails the plaintiff sent in the 48 hours after the Subject Accident: Noting that “Phone records are discoverable if the request is narrowly tailored in date and time and relates to a key issue in the case”, Judge Koppe granted in part this request.
  • Copies of any [of] the data of any type of FitBit, or other activity tracker device from five (5) years prior to the Subject Accident through the present: Noting that the plaintiff had waived objections that the request was overbroad and unduly burdensome because she did not raise these objections in her initial response to Defendant’s amended second set of requests for production, Judge Koppe ordered the plaintiff to “supplement her response to Defendant’s request for production number 30 to fully describe the search she conducted for responsive documents, by July 20, 2018.”
  • Copies or allow for inspection, any social media account the plaintiff had from five (5) years prior to the Subject Accident through the present: Noting that “information from social media is relevant to claims of emotional distress because social media activity, to an extent, is reflective of an individual’s contemporaneous emotions and mental state”, Judge Koppe found “that social media information and communications are relevant and, thus, discoverable under Fed.R.Civ.P. 26(b)” and granted the defendant’s request for that information.
  • Authorization for the release of the plaintiff’s employment records: Despite the fact that the plaintiff claimed she was no longer pursuing a lost wage claim, Judge Koppe noted that “an amended complaint reflecting Plaintiff’s new claims has not been filed” and also observed that “it appears that Plaintiff’s claims of “limited occupational … activities … [and] loss of earning capacity” remain in her complaint”, so she granted that defendant’s request as well.

So, what do you think?  Did the judge fail to take into account privacy concerns of the plaintiff or should relevancy override privacy concerns in this case?  Please let us know if 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.