September's Notable Cases and Events in E-Discovery

1. In Gordon v. T.G.R. Logistics, Inc., 2017 WL 1947537 (D. Wyo. May 10, 2017), Magistrate Judge Mark L. Carman discussed the boundaries of legitimate social media discovery in ruling that a personal injury plaintiff had to produce her Facebook account history from the date of the accident onward to the extent such posts related to 1) significant emotional turmoil or mental disability or significant events reasonably expected to result in emotional distress; 2) the accident and its aftermath or any of her resulting physical or emotional injuries or 3) plaintiff’s level of activity after the accident.

Defendant TGR Logistics, Inc. had requested the history of the plaintiff’s Facebook accounts dating back three years before the accident. At the time of the request, plaintiff had already delivered Facebook information pertaining to a set of relevant keywords requested by the defendant. Plaintiff responded that the additional request for three years of Facebook information was unduly burdensome and invasive, and defendant moved to compel the production of this Facebook account information. Id. at *1.

In considering defendant’s motion to compel, Magistrate Judge Carman focused on the challenges posed by social media on discovery, noting that “[m]ore data has been created in the last two years than in the entire history of the human race and the amount of data is predicted to grow 10-fold by 2020.” Id. at *2 (citation omitted). Because of this ever-expanding source of ESI, the magistrate judge stated that limiting the scope of discovery would be difficult.

The magistrate judge observed that in cases concerning an individual’s physical or mental health, almost any social media post could provide some sort of relevant information or insight into that person’s thought process. At the same time, the magistrate judge also stated that allowing broad discovery of social media activity created the likelihood that more information will be disclosed “than has historically occurred in civil litigation.” The magistrate judge noted that simply because information is easily and inexpensively obtainable does not mean that it is discoverable and that courts have “long denied discovery of information which was easy to obtain, but which was not discoverable.” Id. at *3. On this point, the magistrate judge cited Rule 26(c)(1) allowing courts to limit discovery “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

The magistrate judge said that he “must balance these realities” regarding the discovery of social media. Specifically, there was the “substantial risk” that legitimately injured plaintiffs would abandon their claims due to “the fear of humiliation” from disclosure of their social media history. On the other hand, information in social media posts showing that a plaintiff “is lying or exaggerating his or her injuries should not be protected from disclosure.”

For context, the magistrate judge looked to several cases in which the plaintiffs had to establish emotional distress. Id. at *4-*5. While those cases involved similar claims, the case at hand presented more of the “garden variety” emotional distress claim that parties had addressed effectively for many years without relying on social media. Similarly, plaintiff’s alleged traumatic brain injury was subject to evaluation and diagnosis by experts, and therefore the defendant could formulate arguments without relying on Facebook posts for proof. Accordingly, the magistrate judge rejected as exaggerated defendant’s claim that it could not defend itself against plaintiff’s damages claims without access to the pre-accident Facebook history.

While the magistrate judge suggested that defendant’s request for three years of Facebook posts predating the accident was too broad, he also recognized the need for relevant information about the plaintiff’s mental state and cognitive ability after the accident. For this reason, the magistrate judge granted the motion to compel in part but limited the production to her Facebook account history from the date of the accident onward to the extent that such posts related to 1) significant emotional turmoil, mental distress, or significant events that could reasonably be expected to result in emotional distress; 2) the accident, its aftermath and any of plaintiff’s physical injuries related thereto; or 3) plaintiff’s level of activity after the accident. Id.

2. In Nachurs Alpine Solutions, Corp. v. Banks, 2017 WL 2918979 (N.D. Iowa July 7, 2017), Chief Magistrate Judge C.J. Williams resolved a dispute over defendants’ refusal to produce documents identified by search terms they regarded as nonresponsive by ordering defendants to produce the allegedly nonresponsive documents to plaintiff on an “attorneys’ eyes only” basis without an admission of relevance, at which point plaintiff would review the allegedly nonresponsive documents at its expense and could seek sanctions if it identified responsive documents.

In this employee trade secret litigation, the chief magistrate judge entered an ESI order outlining a list of search terms defendants would use in identifying ESI to be reviewed for privilege, duplication and relevance. Id. at *1. In the course of reviewing the search term results and producing ESI, defendants withheld documents as nonresponsive and outside the scope of discovery. Over the course of two productions, defendants produced approximately 12,000 documents and withheld approximately 44,000 documents as nonresponsive.

Plaintiff took issue with the withholding of documents as nonresponsive, and the parties tried to resolve the dispute without court intervention. Defendants initially agreed to produce nonresponsive documents from the second production on the condition that the documents would be designated as “attorneys’ eyes only” and the production “would not serve as an admission that the documents were responsive.” Id. at *2. Plaintiff found this compromise unacceptable and moved to compel. Plaintiff identified four categories of documents that it regarded as responsive and 28 categories of documents that it agreed were nonresponsive. Plaintiff moved to compel production of all documents not falling within the 28 nonresponsive categories and to have defendants bear the costs of undertaking a second review of the documents.

Chief Magistrate Judge Williams applied Rule 26(b)(1) and balanced several “countervailing factors” regarding plaintiff’s motion to compel. Id. at *4. He noted that there was at least a “colorable prima facie showing” that some of the withheld documents were relevant because they contained at least one of the search terms outlined in the ESI order. On the other hand, defendants’ counsel had already reviewed the documents and represented that they were nonresponsive. Chief Magistrate Judge Williams accepted that defendants’ counsel had marked the documents as nonresponsive in good faith as officers of the court. In addition, plaintiff had made a weak showing that any of the withheld documents were relevant because defendants had shown that the few examples plaintiff cited were either nonresponsive or already produced elsewhere. Finally, the chief magistrate judge noted that his confidence in defendants’ response was affected by his conclusion that the defendants had previously not complied with discovery obligations.

Based on these factors, Chief Magistrate Judge Williams held that it would be disproportional to require defendants to re-review all the withheld documents based on plaintiff’s various categories of documents. Instead, he ordered defendants to produce all nonresponsive ESI on an “attorneys’ eyes only” basis without admitting that the documents were relevant. Plaintiff would then bear its own costs in reviewing the documents, and should plaintiff discover relevant materials wrongfully withheld from production, plaintiff would be free to bring a motion for sanctions.

3. In Eshelman v. Puma Biotechnology, Inc., 2017 WL 2483800 (E.D.N.C. June 7, 2017), Magistrate Judge Robert B. Jones Jr. denied plaintiff’s request for spoliation sanctions based on defendant’s failure to preserve internet web browser and search history.

Plaintiff, an investor in defendant’s biopharmaceutical company, alleged that defendant defamed him in an investor presentation after plaintiff announced an intention to run for a company board seat. Id. at *1. Following the presentation, plaintiff sent a letter to defendant and its board members demanding an immediate apology and retraction. Id. at *2. A few weeks later, plaintiff filed the present lawsuit, after which defendant issued a litigation hold requiring preservation of all documents relating to plaintiff and defendant’s public statements and filings related to plaintiff. The hold notice defined documents to include ESI and advised employees to err on the side of preservation but did not explicitly reference internet browser history, search history or internet sites visited.

Three weeks after issuance of the hold notice, plaintiff sent defendant a letter request to preserve, among other things, the web browser and search histories of individuals involved in drafting the investor presentation. Plaintiff later served written discovery requests seeking the web browser and search history of the persons involved in the presentation. Id. at *3. Defendant subsequently informed plaintiff that although defendant had issued a litigation hold, the hold notice did not identify web browser and search history. In addition, plaintiff stated that its internet browser, Google Chrome, automatically deleted web browser and search history after 90 days and that Chrome had already deleted the requested information prior to receipt of plaintiff’s preservation letter.

Plaintiff moved for spoliation sanctions and an adverse jury instruction related to defendant’s failure to preserve the web browser and search history. Magistrate Judge Jones concluded that plaintiff had not made a sufficient showing to warrant an adverse jury instruction. Id. at *4. As Magistrate Judge Jones explained, before a court may impose sanctions pursuant to Rule 37(e), the court must find that “(1) ESI should have been preserved, (2) ESI was lost; (3) the loss was due to a party’s failure to take reasonable steps to preserve the ESI; and (4) the ESI cannot be restored or replaced through additional discovery.” Once those elements are satisfied, the court may order measures no greater than necessary to cure the prejudice. Fed. R. Civ. P. 37(e)(1). Alternatively, upon a finding that a party acted with the intent to deprive, the court may (1) presume the lost information was unfavorable to the party; (2) instruct the jury that it may or must presume the information was unfavorable to the party; or (3) dismiss the action in its entirety or enter a default judgment. Fed. R. Civ. P. 37(e)(2).

As an initial matter, Magistrate Judge Jones held that plaintiff had failed to show that the ESI could not be replaced through additional discovery. Id. at *5. Though the browser and search history had been deleted, plaintiff could obtain information through depositions regarding the internet sources reviewed by defendant’s employees when drafting the investor preservation. Even assuming that the threshold elements of Rule 37(e) were satisfied, Magistrate Judge Jones further ruled that plaintiff had failed to make a sufficient showing of prejudice to justify court intervention under Rule 37(e)(1) and had failed to show the intent to deprive necessary for plaintiff’s requested jury instruction under Rule 37(e)(2). As to prejudice, plaintiff had simply argued in a “cursory fashion” that the web browser and search history were “likely the most important evidence” in making its case. Though further discovery may inform the extent of prejudice to plaintiff, if any, Magistrate Judge Jones held that plaintiff was not entitled to a sanction pursuant to Rule 37(e)(1). With respect to the requested adverse jury instruction, plaintiff made no argument as to how defendant acted with an intent to deprive plaintiff of the web browser and search history. Magistrate Judge Jones noted that plaintiff did not have a formal document retention and destruction policy and was unaware of Google Chrome’s default deletion settings. In addition, plaintiff promptly issued a litigation hold after plaintiff filed his complaint, and by the time plaintiff requested web browser and search history, that information had already been deleted. Plaintiff argued that defendant should have issued a litigation hold as soon as plaintiff demanded a retraction of the presentation, but Magistrate Judge Jones found that this would demonstrate, at best, negligence on defendant’s part.

Accordingly, Magistrate Judge Jones denied plaintiff’s request for sanctions relating for defendant’s failure to preserve the internet website and browser history relating to the allegedly defamatory presentation.

4. In Bailey v. Brookdale University Hospital Medical Center, 2017 WL 2616957 (E.D.N.Y. June 16, 2017), U.S. Magistrate Judge Kathleen Tomlinson shifted a portion of plaintiff’s production costs to defendant “to level the playing field” after finding that plaintiff’s counsel had not engaged in a meaningful meet-and-confer process concerning the terms of an agreed ESI protocol and had not thoroughly reviewed the protocol before signing it.

In conjunction with the Rule 26(f) discovery conference, the parties negotiated, executed and jointly submitted an ESI protocol to the court. Id. at *1. Several months after entry of the ESI protocol, plaintiff’s counsel sought to undo various provisions of the ESI agreement because it would be “unduly burdensome” and “costly” to produce documents in the manner set forth in the order. In response, the court directed plaintiff’s counsel to get a cost estimate from an outside vendor and provide an affidavit setting forth the basis of the economic hardship claim. Thereafter, plaintiff’s counsel submitted a motion with supporting affidavit to shift discovery costs, claiming that ESI discovery would cost $2,000 to $3,000, and this expense would cause plaintiff to experience “severe financial hardship” as he is “the only working member of [his] family” and earns “roughly $90,000 per year.” Defendants filed an opposition to the cost shifting request.

The magistrate judge cited the general rule that the responding party bears all such costs (citing Rowe Entm’t, Inc. v. William Morris Agency, Inc., 205 F.R.D. 421, 429 (S.D.N.Y. 2002)) but noted that the court may, under limited circumstances, shift production expenses to the requesting party in case of undue burden or expense. Id. at *3-*4. The magistrate judge acknowledged that no evidence had been produced suggesting that the information sought by defendants was inaccessible, and therefore production would not be so unduly burdensome or expensive as to justify deviating from the general rule requiring the producing party to bear the expense of production. The magistrate judge stated that this point was not dispositive, however, and noted that the parties did not adequately meet and confer to develop a discovery plan and that defendants were insisting on production in the format set forth in the ESI protocol. Magistrate Judge Tomlinson also observed that the ESI agreement was not properly tailored to the needs of this case, being a precedent used in corporate settings as opposed to a single-plaintiff employment discrimination case. Id. at *5. The magistrate judge concluded that plaintiff’s counsel did not engage in meaningful discussions with his client regarding the agreement’s terms and costs in producing the information in defendants’ requested format. In a similar vein, she also found that plaintiff’s counsel did not engage in a meaningful meet-and-confer process with opposing counsel concerning the ESI agreement, nor did he thoroughly review the agreement (or consider its ramifications) before signing it.

Magistrate Judge Tomlinson ruled that she did not have sufficient grounds to rescind the agreement and instead concluded that a measure of partial cost-shifting was appropriate “to level the playing field” in this case given the issues with the ESI protocol, the inadequate meet-and-confer process and defendant’s insistence on production in accordance with the protocol’s terms. Specifically, the magistrate judge directed that 40 percent of the plaintiff’s ESI production costs would be borne by defendants, while the remaining 60 percent would be plaintiff’s responsibility