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Proportionality

Court Denies Defendant’s Motion for Protective Order in Broiler Chicken Case: eDiscovery Case Law

In the In re Broiler Chicken Antitrust Litigation, No. 16 C 8637 (N.D. Ill. July 26, 2018), Illinois Magistrate Judge Jeffrey T. Gilbert denied defendant Agri Stats’ Motion for Protective Order, ruling the defendant “Has Not Made a Threshold Showing” and, the information requested by the End User Consumer Plaintiffs (“EUCPs”) was not reasonably accessible because of undue burden or cost (and, even if they had, the EUCPs showed good cause for requesting custodial searches of ESI, throughout the time frame set forth in the ESI Protocol) and that Agri Stats “Does Not Satisfy the Rule 26(b)(2)(C) Factors” to limit discovery.

Case Background

Prior to this class action lawsuit involving broiler chicken prices, defendant Agri Stats was the subject of a DOJ investigation and claimed it “searched for and produced to the DOJ documents and information like what the EUCPs are requesting”.  Agri Stats ran custodial searches for designated custodians for the period between September 17, 2008 through September 17, 2010, and it produced to the DOJ responsive documents it collected with those searches. But, the time frame for discovery in this case was much broader, extending from January 1, 2007 until September 2, 2016.

Agri Stats argued that it should not be required to run custodial searches of ESI created prior to October 3, 2012 (the date the DOJ investigation closed) for the agreed upon 12 custodians because it ran similar searches for most of those custodians during the DOJ investigation and “requiring it to re-run expensive searches with the EUCPs’ search terms for those same custodians for a broader time period than it already ran is burdensome, disproportionate to the needs of this case, and unreasonable when viewed through the filter of Federal Rule of Civil Procedure 26(b)(2).”

The EUCPs disagreed and contended that Agri Stats should be required, like every other Defendant in this case, to perform the requested searches with the EUCPs’ proposed search terms for the time frame stated in the ESI Protocol, contending that both were broader than what Agri Stats produced for the DOJ investigation.

Judge’s Ruling

Considering the arguments, Judge Gilbert stated:

“The Court agrees with EUCPs. Although Agri Stats conducted custodial searches for a limited two-year period in connection with the DOJ’s investigation of possible agreements to exchange competitively sensitive price and cost information in the broiler, turkey, egg, swine, beef and dairy industries, that investigation focused on different conduct than is at the heart of EUCPs’ allegations in this case, which cover a broader time period than was involved in the DOJ’s investigation. The Court finds that a protective order is not warranted under these circumstances.”

While noting that “Agri Stats says that it already has produced in this case more than 296,000 documents, including approximately 155,000 documents from before October 2012” and that “Agri Stats represents that the estimated cost to run the custodial searches EUCPs propose and to review and produce the ESI is approximately $1.2 to $1.7 million”, Judge Gilbert observed that the “estimated cost, however, is not itemized nor broken down for the Court to understand how it was calculated”.  Judge Gilbert also noted that “EUCPs say they already have agreed, or are working towards agreement, that 2.5 million documents might be excluded from Agri Stats’s review. That leaves approximately 520,000 documents that remain to be reviewed. In addition, EUCPs say they have provided to Agri Stats revised search terms, but Agri Stats has not responded.”

As a result, Judge Gilbert determined that “Agri Stats falls woefully short of satisfying its obligation to show that the information EUCPs are seeking is not reasonably accessible because of undue burden or cost.”  In denying the defendant’s motion, he also ruled that “Even if Agri Stats Had Shown Undue Burden or Cost, EUCPs Have Shown Good Cause for the Production of the Requested ESI and Agri Stats Does Not Satisfy the Rule 26(b)(2)(C) Factors”.

So, what do you think?  Could the defendant have done a better job of showing undue burden and cost?  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.

Court Vacates Order Requiring Defendant to Review and Produce as Much as Three Million Emails: eDiscovery Case Law

As we approach “case week” in a couple of weeks and our webcast on Key eDiscovery Case Law Review for the First Half of 2018 on Wednesday, July 25th, we’re catching up on a handful of cases from earlier this year.  Enjoy!

In Nece v. Quicken Loans, Inc., No. 8:16-cv-2605-T-23CPT. (M.D. Fla. Feb. 27, 2018), Florida District Judge Steven D. Merryday sustained the defendant’s objection to an order requiring the defendant to produce all documentation related to do-not-call requests received between September 2012 and June 2013 and also required the plaintiff to move for class certification by April 13.

Case Background

In this case involving a dozen calls to an individual who had placed her number on the national do-not-call registry but had inquired about a mortgage from the defendant, the plaintiff sued the defendant for calling with an artificial or prerecorded voice, for calling a number on the national do-not-call registry (a violation of 47 C.F.R. § 64.1200(c)), and for calling the plaintiff before “institut[ing]” several procedures required by a Telephone Consumer Protection Act (TCPA) regulation.  The court eventually granted summary judgment on the first two claims, but denied summary judgment on the Section 64.1200(c) claim because of “two predominant disputes of material fact.”

The plaintiff had originally all documentation related to requests received by the defendant requesting that it not contact (or revoking consent to contact) consumers, even though the TCPA contains a four-year limitation for documentation requested.  The defendant objected for several reasons, including the burden and the relevance of the plaintiff’s requests, stating that the requests require collecting and reviewing at least three million e-mails, a review that might cost millions of dollars.  Nonetheless, on May 5, 2017, the magistrate judge partially granted the plaintiff’s motion to compel, calling the plaintiff’s requests “overly broad and disproportionate to Plaintiff’s needs at this stage of the proceedings”, but also “not wholly irrelevant to Plaintiff’s allegations” and ordered the documentation to be provided for the period between September 2012 and June 2013.  The magistrate judge also denied the defendant’s quick motion for clarification or reconsideration of the May 5 order, even after the defendant indicated that compliance would require dozens of employees to spend months on document review and would cost at least hundreds of thousands of dollars.  The defendant objected to both orders, arguing that it had “already produced 12,000-plus pages of records relating to 450,000 phone numbers and individuals,” and that complying with the order “might require 15,000 hours of a Quicken employee’s or of outside counsel’s time.”

Judge’s Ruling

In ruling on the defendant’s objection, Judge Merryday stated: “For too long, Nece has avoided confronting the reality that individualized issues often predominate in putative TCPA class actions involving a dispute about consent or the revocation of consent…The resolution of Nece’s claim will require the jury to parse Nece’s words and to determine when Nece revoked consent to a call. As the February 14 order explains, several ‘unique’ or idiosyncratic facts (including the phrasing of Nece’s comments and Nece’s repeated submissions) contribute to the determination whether Quicken stopped calling Nece within a reasonable time. In this circumstance, Nece’s class-discovery requests impose on Quicken a burden disproportional to the needs of this action. Because the May 5 order clearly erred by requiring Quicken to respond to the requests, Quicken’s objection (Doc. 77) is SUSTAINED, and the May 5 order is VACATED to the extent the May 5 order conflicts with this order.”

As for the plaintiff’s request to extend the deadline for class certification, Judge Merryday stated: “Class-certification discovery remained available to Nece for eleven months. In that time, Nece ‘propounded [sixty-one] requests for production, [ten] interrogatories, and [twenty-five] requests for admission.’…Quicken provided more than ten-thousand records about the putative class.”  However, Judge Merryday allowed the plaintiff to move for class certification by April 13, 2018 (earlier than the plaintiff requested date of August 16, 2018), even though the local rule deadline to do so was December 7, 2016.

So, what do you think?  Should the magistrate judge’s order have been vacated?  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.

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 Rejects Search Terms by Both Sides as Overly Inclusive: eDiscovery Case Law

Monday, I asked for a call for key eDiscovery case law cases in 2018 to cover.  While this one wasn’t overtly suggested, it was covered by Ralph Losey in his excellent e-Discovery Team® blog the same day, so that works too… :o)

In Am. Municipal Power, Inc. v. Voith Hydro, Inc., No. 2:17-cv-708 (S.D. Ohio June 4, 2018), Ohio Magistrate Judge Elizabeth A. Preston Deavers ruling on the parties’ arguments from a May discovery conference, concluded that search terms proposed by both parties in the case were overly inclusive.

Case Background

The parties provided extensive letter briefing for a discovery conference on May 24, 2018 regarding discovery disputes relating to the production of ESI and other documents, with the parties’ dispute centered around two ESI-related issues: (1) the propriety of a single-word search by Project name proposed by the defendant which it sought to have applied to the plaintiff’s ESI and (2) the propriety of the plaintiff’s request that the defendant run crafted search terms which the plaintiff proposed that were not limited to the Project’s name.

Judge’s Ruling

After careful consideration of the parties’ letter briefing and their arguments during the discovery conference, Judge Deavers concluded as follows with regard to the defendant’s proposed search terms:

“Voith’s single-word Project name search terms are over-inclusive. AMP’s position as the owner of the power-plant Projects puts it in a different situation than Voith in terms of how many ESI “hits” searching by Project name would return. As owner, AMP has stored millions of documents for more than a decade that contain the name of the Projects which refer to all kinds of matters unrelated to this case. Searching by Project name, therefore, would yield a significant amount of discovery that has no bearing on the construction of the power plants or Voith’s involvement in it, including but not limited to documents related to real property acquisitions, licensing, employee benefits, facility tours, parking lot signage, etc. While searching by the individual Project’s name would yield extensive information related to the name of the Project, it would not necessarily bear on or be relevant to the construction of the four hydroelectric power plants, which are the subject of this litigation. AMP has demonstrated that using a single-word search by Project name would significantly increase the cost of discovery in this case, including a privilege review that would add $100,000 — $125,000 to its cost of production. The burden and expense of applying the search terms of each Project’s name without additional qualifiers outweighs the benefits of this discovery for Voith and is disproportionate to the needs of even this extremely complicated case.”

Judge Deavers also concluded this with regard to the plaintiff’s proposed search terms:

“AMP’s request that Voith search its ESI collection without reference to the Project names by using as search terms including various employee and contractor names together with a list of common construction terms and the names of hydroelectric parts is overly inclusive and would yield confidential communications about other projects Voith performed for other customers. Voith employees work on and communicate regarding many customers at any one time. AMPs proposal to search terms limited to certain date ranges does not remedy the issue because those employees still would have sent and received communications about other projects during the times in which they were engaged in work related to AMP’s Projects. Similarly, AMP’s proposal to exclude the names of other customers’ project names with “AND NOT” phrases is unworkable because Voith cannot reasonably identify all the projects from around the world with which its employees were involved during the decade they were engaged in work for AMP on the Projects. Voith has demonstrated that using the terms proposed by AMP without connecting them to the names of the Projects would return thousands of documents that are not related to this litigation. The burden on Voith of running AMP’s proposed search terms connected to the names of individual employees and general construction terms outweighs the possibility that the searches would generate hits that are relevant to this case. Moreover, running the searches AMP proposes would impose on Voith the substantial and expensive burden of manually reviewing the ESI page by page to ensure that it does not disclose confidential and sensitive information of other customers. The request is therefore overly burdensome and not proportional to the needs of the case.”

So, what do you think?  Are these parties overreaching, do they need a course in search best practices or do they need a TAR approach?  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.

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.

Plaintiff is Able to Get Some Subpoenas for Personal Data Quashed, But Not All: eDiscovery Case Law

In Delgado v. Tarabochia, et al., No. C17-1822RSL (W.D. Wash. May 4, 2018), Washington District Judge Robert S. Lasnik granted in part and denied in part the plaintiff’s motion to quash subpoenas for personal phone records and bank records, finding that phone records before the plaintiff’s hand injury on the defendant’s fishing boat were “of vital importance to defendants’ theory of the case”, but that the need for pre-incident bank records was not proportional to the needs of the case and that, with regard to subpoenas of post-incident data, defendants were “fishing”.

I’ll pause a moment to let you enjoy the irony of that statement… :o)

Case Background

Anyway, the plaintiff injured his hand while on board the F/V JOYCE MARIE and sued the vessel and vessel owner(s) for Jones Act negligence and unseaworthiness, alleging that he lost his balance and his hand went through a plate glass window on the wheelhouse, causing severe injuries with continuing disabilities.  However, another crew member on board at the time of the incident claimed that the plaintiff was using heroin in the days leading up to the incident and was in the midst of a heated argument with his girlfriend when he punched through the window.  After the plaintiff left the vessel, defendants located a computer file supposedly created by the plaintiff, containing text messages, emails, and photographs dated October 2013 to July 2014 that seemed to reflect drug transactions and a volatile relationship, but the plaintiff (in his deposition) denied fighting with his girlfriend and denied punching through the wheelhouse window.  Reporting that he had no feeling in three of his fingers and his thumb and was in constant, severe pain, the plaintiff claimed he was entitled to damages of $3 million, but the defendant had surveillance video that seemed to contradict the plaintiff’s testimony regarding the extent and severity of his injuries.

The defendants issued three subpoenas for phone records from January 2014 to the present, including all account information, call and text message logs, and roaming data. They also issued two subpoenas for bank records for the same period, seeking detailed summaries of credit and debit card transactions, withdrawals, and deposits. The plaintiff seeks to quash all five subpoenas as irrelevant and an unwarranted burden on his privacy interests.

Judge’s Ruling

With regards to the pre-incident phone records, Judge Lasnik indicated that “defendants have identified a specific need to confirm events and authenticate communications that are directly relevant to a determination of whether defendants’ negligence and/or the vessel’s unseaworthiness caused plaintiff’s injuries. To the extent these records mirror the electronic files found on the vessel’s computer and corroborate the other crewman’s statements, they are of vital importance to defendants’ theory of the case. While much will be disclosed that has nothing to do with this case, plaintiff’s privacy interests do not outweigh the need to obtain relevant information regarding the cause of plaintiff’s injuries in this case where plaintiff says he is entitled to damages of $3,000,000.”

With regards to the pre-incident bank records, Judge Lasnik stated that “defendants offer no reason to suspect that these records will authenticate or corroborate the electronic files plaintiff left behind. Production of plaintiff’s pre-incident finances, including every purchase and every deposit, is unlikely to result in admissible evidence (there is no reason to suspect that plaintiff used a credit card to purchase heroin or that defendants would be able to identify such transactions from a list of charges or withdrawals). Because of its minimal relevance and the outsized burdens it would impose on plaintiff’s privacy interests, discovery of the pre-incident bank records is not proportional to the needs of the case.”

As for the post-incident phone and bank records, Judge Lasnik stated that “defendants are fishing” and granted the plaintiff’s motion to quash the subpoena for these records because the “balance of the benefits and burdens of these post-incident discovery requests are not in defendants’ favor: they are not prompted by any specific need for information and are likely to drive discovery and generate disputes that are wholly collateral to the primary issues in this case.”

So, what do you think?  Did the judge assess the relevancy and proportionality in this case correctly and were the defendants “fishing” for the post-incident records?  Tee-hee!  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.

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 Compels Discovery in Response to Party That Was Using Outdated Rule 26 Standard: eDiscovery Case Law

In Cen Com, Inc. v. Numerex Corp., No. C17-0560 RSM, (W.D. Wash., April 11, 2018), Washington Chief District Judge Ricardo S. Martinez ruled that the Plaintiff’s refusal to comply with the Defendant’s request for discovery using specific search terms was not justified, and that the Plaintiff must “fully comply with the subpoenas that Defendants served upon them and shall produce all responsive documents in a format that is accessible/readable by Defendants.”

Case Background

A request for discovery was issued by the Defendant for the founder and owner of the Plaintiff, along with two current employees of the Plaintiff, all of whom were former employees of the Defendant. The plaintiffs objected to the subpoenas “on the basis that it was an improper attempt to obtain discovery from a party employee,” and “that the subpoena is overbroad, unduly burdensome, and that the costs outweigh the potential for acquiring relevant information.”

The Defendant also filed a motion to compel the Plaintiff to use specific electronic search terms (“attorney w/2 general” and “consent w/2 decree”) related to a 2012 consent decree that Plaintiff entered into with Washington State’s Attorney General. The Plaintiff objected to the search terms regarding the consent decree as irrelevant.

As part of a counterclaim, the Plaintiff requested sanctions against the Defendant, claiming they withheld certain documents because of a pending motion for protective order, which was later denied by the Court. However, the Plaintiff continued to seek sanctions for the time period that it alleges Defendants were not in compliance with the stipulated ESI Order.

Judge’s Ruling

In Judge Martinez’s ruling, all of the Defendants’ motions were granted. Regarding the scope and relevance of the discovery request, it was noted that the Plaintiff was basing their refusal to comply on the former FRCP Rule 26 standard and not in line with the current version of Rule 26, which states discovery must be relevant to the claim and proportional to the needs of the case, while taking into account the parties’ access to relevant information and available resources, the importance of the discovery in resolving the matter, and whether the burden or expense of discovery outweighs its likely benefit.

Additionally, under Rule 37, “The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.” Here the Plaintiff failed to explain specifically why the documents are not relevant, or that a search of the documents would be unduly burdensome, and instead only made the blanket statement that the documents sought “do not concern this matter and could not lead to relevant information.”

In regard to the Plaintiff’s counterclaim, Judge Martinez denied the motion for sanctions, citing Rule 37(d)(2): “A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).”

So, what do you think?  Was the ruling correct or were the Defendant’s requests “overly burdensome”?  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.

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 on Scope of Plaintiff Discovery Requests: eDiscovery Case Law

In Performance Pulsation Control, Inc. v. Sigma Drilling Techs., LLC, et al., No. 4:17-CV-00450 (E.D. Tex. Fe. 13, 2018), Texas District Judge Amos L. Mazzant granted the plaintiff’s motion to compel in part, ordering the defendants to produce documents related to four specific categories, but within certain parameters.

Case Background

In this case regarding claims of misappropriation of trade secrets and confidential information by a former employee of the plaintiff who formed a competing company, the parties had discovery disputes and the plaintiff contended that the defendants failed to produce any of the materials they generally described in their Rule 26 disclosures or state when they intended to produce such materials.  In September 2017, the plaintiff sent more than 850 Requests for Production to the Defendants and, about a month later, the defendants objected and responded to their requests.  In response to a letter by the plaintiff detailing stated issues with the defendants’ production, the defendants produced additional documents, but the parties still needed a telephonic conference with the Court in December 2017 to discuss the discovery dispute and the Court recommended that the parties file briefing on the issue.  Six days later, the plaintiff filed its motion to compel.

In its motion, the plaintiff sought an order compelling the defendants to produce four general categories of documents and tangible items from time periods before, during, and after employment by the former employee, as follows:

“(1) Emails and documents sent to or received from any “PPC Contact” and similar documents sent to or received from relevant third parties.

(2) Emails and documents relating to PPC trade secrets, specific pulsation control products, and pulsation control generally.

(3) Emails and documents relating to Defendants’ scope of work with PPC, information owned by PPC, and emails to and from PPC.

(4) Emails and documents relating to Defendants’ competitive business.”

Judge’s Ruling

With regard to the first category, the parties had already further refined the scope of “PPC Contacts” and “relevant third parties” and the defendants had produced additional documents and were “conducting additional searches based on that information.”  With that in mind, Judge Mazzant stated: “The Court finds that to the extent Defendants have not already done so, they must produce documents sent to or received from any “PPC Contact” or “third party” as limited in the conference letter. However, the Court narrows such production to documents and communications dated during and after the time of Defendants’ employment.”

With regard to category #2, Judge Mazzant stated: “The Court finds production of such information and documents is warranted as limited in PPC’s conference letter, with the exception that such production is narrowed to documents and communications dated during or after Defendants’ employment with PPC.”  He also reminded the defendants that such trade secret related information could be produced subject to the Court’s protective order with an Attorney’s Eyes Only or Confidential designation.

With regard to category #3, Judge Mazzant stated: “The Court finds that to the extent that Defendants have not produced such information, they must do so. However, any production is limited to information dated or obtained during and after Defendants’ employment with PPC. Further, to the extent Defendants are concerned that any information is confidential or relates to any trade secrets, the Court reiterates Defendants’ ability to produce any information pursuant to the Court’s Protective Order and/or in a reasonably redacted format.”

In discussions with the defendant on category #4, the plaintiff, in its conference letter, described “competitive business activities” to include “formation documents, corporate governance documents, revenues and net profits earned, employees, agreements with third parties, contacts, types of work, etc.”  With that in mind, Judge Mazzant stated: “The Court finds to the extent Defendants have not already done so, they must produce all emails and documents related to Defendants’ formation documents, corporate governance documents, revenues and net profits earned, employees, agreements with third parties, contacts, and types of work. However, such production is limited to during and after Defendants’ employment with PPC.”

So, what do you think?  Did the court manage the discovery disputes effectively?  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.

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 Plaintiffs’ Request to Email All Defendant Employees as “Simply Unreasonable”: eDiscovery Case Law

In Firefighters’ Ret. Sys., et al. v. Citco Grp. Ltd., et al., No. 13-373-SDD-EWD (M.D. La. Jan. 3, 2018), Louisiana Magistrate Judge Erin Wilder-Doomes denied the plaintiffs’ renewed motion to compel after the parties previously agreed upon search terms and document custodians, stating that the plaintiffs’ request to “email everyone in every Citco entity to ask whether anyone employed by any Citco entity has knowledge relevant to this litigation, and thereafter require the Citco Defendants to conduct additional electronic and hard copy searches for documents” was “simply unreasonable” and would be “unduly burdensome”.

Case Background

In this case regarding claims of unjust enrichment and breach of contract (among others) regarding fund shares purchased for $100 million that ultimately turned out to be worthless, the plaintiffs previously filed a Motion to Compel seeking an order compelling Citco Group to respond to multiple interrogatories and requests for production based upon the knowledge of entities controlled by Citco Group and/or possession of documents by entities controlled by the Citco Group.  In response, the Citco Defendants argued that granting Plaintiffs’ motion would ignore the substantial discovery efforts already made in the case (as the parties had previously agreed to a scope of 56 search terms to be applied against 21 custodians) and would be incompatible with the proportionality requirement of the federal rules.

The Initial Motion to Compel was discussed during an October 2017 status conference with the parties, and the court found that Plaintiffs’ concerns should be addressed with a 30(b)(6) deposition of defendant’s corporate counsel to describe the process for locating responsive documents (and denied the Initial Motion without prejudice to re-urging following the corporate deposition).  After the 30(b)(6) deposition, the plaintiffs filed a Renewed Motion to Compel, contending that the defendants’ responses to these interrogatories “were incomplete and inaccurate” and resulted in “a flawed list of custodians” and a “flawed electronic search for documents.”  They also contended that the defendants’ 30(b)(6) deponent confirmed that “one email can be sent to everyone in the Citco organization and ask them limited questions about their personal knowledge of the issues in this lawsuit”.  The defendants objected, asserting that any additional searches (beyond the previously agreed scope) based on an e-mail questionnaire to all employees “would be disproportional to the needs of this case”.  A December 2017 status conference failed to resolve the dispute.

Judge’s Ruling

Judge Wilder-Doomes reiterated that “Based on the parties’ correspondence, the parties agreed upon 56 search terms and…21 document custodians”.  She also observed that “Plaintiffs still have not explained why the custodians and search terms used were unreasonable. Moreover, although the Citco Defendants have been willing to add additional search terms during the course of this litigation, and note in opposition to the Renewed Motion to Compel that they are ‘prepared to discuss with Plaintiffs additional document custodians (if Plaintiffs identify any),’ Plaintiffs failed to identify proposed additional custodians in either their Renewed Motion to Compel or during the December 12, 2017 status conference.”

In denying the Renewed Motion to Compel, Judge Wilder-Doomes stated: “Instead, Plaintiffs seek permission from this court to email everyone in every Citco entity to ask whether anyone employed by any Citco entity has knowledge relevant to this litigation, and thereafter require the Citco Defendants to conduct additional electronic and hard copy searches for documents. That is simply unreasonable, and in essence is a request for the Citco Defendants to ‘go back to square one’ of their document production efforts despite the parties’ agreement regarding custodians and search terms, the Citco Defendants apparent willingness to consider additional custodians and search terms, and Plaintiffs failure to identify or explain the necessity of any additional custodians or search terms. Further, such a large scale search raises proportionality concerns and, especially in light of the parties’ previous agreements and efforts, would be unduly burdensome.”

So, what do you think?  Was this request a “fishing expedition” by the plaintiffs?  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.

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 Reproduce ESI and Produce Search Term List As Agreed: eDiscovery Case Law

In Youngevity Int’l Corp., et al. v. Smith, et al., No: 16-cv-00704-BTM (JLB) (S.D. Cal. Dec. 21, 2017), California Magistrate Judge Jill L. Burkhardt, granted the defendants’ motion to compel proper productions against the plaintiffs and ordered the plaintiffs to either provide its search hit list to the plaintiffs, meet and confer on the results and screen the results for responsiveness and privilege OR produce 700,000 additional responsive documents and pay for the defendants to conduct Technology Assisted Review (TAR) on the results.  Judge Burkhardt also ordered the plaintiffs to designate “only qualifying documents” as confidential or Attorney’s Eyes Only (AEO) and to pay for the reasonable expenses, including attorney’s fees, of bringing the motion.

Case Background

In this case regarding alleged unlawful competition filed by the plaintiffs against Wakaya (the defendants company formed by former distributors of the plaintiffs company), the defendants proposed during discovery in May 2017 a three-step process by which: “(i) each side proposes a list of search terms for their own documents; (ii) each side offers any supplemental terms to be added to the other side’s proposed list; and (iii) each side may review the total number of results generated by each term in the supplemented lists (i.e., a ‘hit list’ from our third-party vendors) and request that the other side omit any terms appearing to generate a disproportionate number of results.”  Six days later, the plaintiffs stated that “[w]e are amenable to the three step process described in your May 9 e-mail” and the parties exchanged lists of proposed search terms to be run on their own ESI and their opponent’s ESI.

While the defendants provided the plaintiffs with a hit list of the total number of results generated by running each term in the expanded search term list across its ESI, the plaintiffs never produced its hit list.  The plaintiffs also made two large productions of approximately 1.9 million pages and 2.3 million pages and, without reviewing them beforehand, mass designated them all as confidential and/or AEO.  The produced ESI contained numerous non-responsive documents and the parties attempted without success to meet and confer (even with Court assistance) on reducing the number of documents classified as AEO.  The plaintiffs also notified the defendants (around the beginning of October 2017), that it had inadvertently failed to produce an additional 700,000 documents due to a technical error by its discovery vendor.

As a result of all of the issues associated with the plaintiffs’ production, the defendants sought an order under FRCP 26(g) or Rule 37 requiring the plaintiffs to remedy its improper production and pay the costs incurred by the defendants as a result of this motion and the costs associated with reviewing the plaintiffs’ prior productions.

Judge’s Ruling

While considering the defendants’ assertions that the plaintiffs “impermissibly certified its discovery responses because its productions amounted to a ‘document dump’ intended to cause unnecessary delay and needlessly increase the cost of litigation”, Judge Burkhardt determined that “Wakaya fails to establish that Youngevity violated Rule 26(g)”, “declin[ing] to find that Youngevity improperly certified its discovery responses when the record before it does not indicate the content of Youngevity’s written responses, its certification, or a declaration stating that Youngevity in fact certified its responses.”

However, Judge Burkhardt stated that “the record indicates that Youngevity did not produce documents following the protocol to which the parties agreed”, noting that “Youngevity failed to produce its hit list to Wakaya, and instead produced every document that hit upon any proposed search term” and that “the parties negotiated a stipulated protective order, which provides that only the ‘most sensitive’ information should be designated as AEO”.  She also stated that “Youngevity conflates a hit on the parties’ proposed search terms with responsiveness…The two are not synonymous…Search terms are an important tool parties may use to identify potentially responsive documents in cases involving substantial amounts of ESI. Search terms do not, however, replace a party’s requests for production.”

As a result, Judge Burkhardt gave the plaintiffs two options for correcting their discovery productions with specific deadlines:

“1) By December 26, 2017, provide its hit list to Defendant; by January 5, 2018, conclude the meet and confer process as to mutually acceptable search terms based upon the hit list results; by January 12, 2018, run the agreed upon search terms across Plaintiff’s data; by February 15, 2018, screen the resulting documents for responsiveness and privilege; and by February 16, 2018, produce responsive, non-privileged documents with only appropriate designations of “confidential” and “AEO” (said production to include that subset of the not-previously-produced 700,000 documents that are responsive and non-privileged); or

2) By December 26, 2017, provide the not-previously-produced 700,000 documents to Defendant without further review; pay the reasonable costs for Defendant to conduct a TAR of the 700,000 documents and the July 21, 2017 and August 22, 2017 productions for responsiveness; by January 24, 2018, designate only those qualifying documents as “confidential” or “AEO”; by that date, any documents not designated in compliance with this Order will be deemed de-designated.”

Judge Burkhardt also ordered the plaintiffs to pay for the reasonable expenses, including attorney’s fees for bringing the motion and for the expenses incurred by the defendants “as a result of Youngevity’s failure to abide by the Stipulated Protective Order.”

So, what do you think?  Did the plaintiffs abuse the process?  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.

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 Adds Some of the Custodians Requested by Plaintiffs to Discovery, But Not All: eDiscovery Case Law

In Mann, et al. v. City of Chicago, et al, Nos. 15 CV 9197, 13 CV 4531 (N.D. Ill. Sep. 8, 2017), 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.

Case Background

In this consolidated case involving alleged unconstitutional Chicago police (CPD) practices at “off the grid” facilities (including one known as “Homan Square”), the parties agreed on several discovery related items, including search terms and the majority of custodians.  The parties also agree that discovery would include the Mayor’s Office, but “reached an impasse” on which custodians in the Mayor’s Office should be searched, with the plaintiffs’ arguing that Mayor Emanuel and ten members of his senior staff were relevant to the plaintiffs’ Monell claim.  In response, the defendant argued that the plaintiffs’ request was burdensome, and that the plaintiffs “have failed to provide any grounds to believe that the proposed custodians were involved with CPD’s policies and practices at Homan Square”, proposing instead that it search the two members of the Mayor’s staff responsible for liasoning with the CPD and leave “the door open for additional custodians” depending on the results of that search.

Judge’s Ruling

With regard to the parties’ dispute over whether the Mayor was a “policymaker” for the City with regard to the use of the Homan Square facility, Judge Rowland stated: “On summary judgment or at trial, Plaintiffs will have to provide evidence that ‘the unlawful practice was so pervasive that acquiescence on the part of policymakers was apparent and amounted to a policy decision’ or that a policymaking official responsible for final government policy on the police practices at issue directed the particular conduct that caused Plaintiffs’ harm…But at this stage Plaintiffs do not have to establish that the Mayor was a policymaker or had final authority on the police practices at issue or that there is a ‘nexus’ between the custodians of the emails and CPD’s alleged activities at Homan Square.”

Judge Rowland also noted that the defendant had identified the two custodians “as the most likely holders of responsive emails…But in light of the allegations in the complaint, the Mayor and his upper level staff also might have responsive emails.”  She also rejected the defendant’s argument that the additional custodians would be burdensome, noting that “[t]he City does not offer any specifics or even a rough estimate about the burden.”

As a result, Judge Rowland ordered the defendant to search emails of five additional custodians (including the Mayor of Chicago), but did not require the defendant to search emails for an additional four custodians requested by the plaintiff “because of the short tenure of the staff person or the time during which the person held the position”.  She also denied the plaintiffs’ request for sanctions against the defendant, stating: “The Court does not view the City’s conduct as sanctionable and both parties’ diligent efforts to work together shows that ‘other circumstances make an award of expenses unjust.’”

So, what do you think?  Might the defendant have had a better result if it had provided at least an estimate of the burden?  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.