This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- a U.S. District Court for the Northern District of Illinois ruling denying plaintiffs’ request for “discovery on discovery” because plaintiffs did not show tangible evidence of a failure by defendants to meet their discovery obligations, and the request was not proportional to the needs of the case
- a U.S. District Court for the Middle District of Florida ruling granting defendant’s motion to compel discovery of plaintiff’s social media accounts, finding no merit to plaintiff’s objections on relevance, privacy, and vagueness grounds
- a U.S. District Court for the District of Columbia decision denying plaintiffs’ request for pre-class certification discovery, finding that plaintiffs had not demonstrated that such discovery would help them make a prima facie showing that their class action plausibly satisfies the requirements of Fed. R. Civ. P. 23
- a U.S. District Court for the Northern District of Ohio order granting sanctions against defendants for failing to produce documents or comply with “even the most basic discovery obligations” without the court’s involvement
1. In Gross v. Chapman, 2020 WL 4336062 (N.D. Ill. July 28, 2020), United States Magistrate Judge Jeffrey Cole held that “discovery on discovery” is appropriate only where the requesting party can show tangible evidence of a failure by the responding party to meet its obligations, especially where such additional discovery is not proportional to the needs of the case.
As an intended bride and groom planned their wedding, a dispute arose over whether children should be invited. This led to another dispute related to surveillance in the couple’s home, and, ultimately, the groom-to-be called off the wedding. The bride’s family, out over $100,000 in wedding costs, sued the groom’s family in federal court. Id. at *1.
During discovery, the defendants produced nearly 5,000 text messages and emails based on multiple requests from the plaintiffs. Unsatisfied with the information produced, the plaintiffs sought additional interrogatories and to depose the defendants’ vendor regarding the process used to identify relevant text messages. Specifically, the plaintiffs were suspicious because there were only 28 text messages between the would-be bride and groom produced for the period following the demise of the relationship. The plaintiffs believed this was “too low” when compared with the production of text messages between the couple from the time period in which their relationship was active.
Magistrate Judge Cole disagreed: “Of course it is much lower. It covers a period after the breakup, when common experience and common sense would dictate that the number be lower.” Id. at *2. He further rejected the plaintiffs’ subjective distrust of the defendants’ production: “It must be remembered that evaluation and analysis of cases is not determined by the tendentious speculation of necessarily interested parties but rather is guided by common sense and ordinary human experience.” Id (quoting United States v. Montoya De Hernandez, 473 U.S. 531, 542 (1985) (internal quotations omitted)). In this case, nearly 5,000 texts total was “more than ample proof of the propriety of production.”
Magistrate Judge Cole characterized the plaintiffs’ motion as “discovery about discovery.” Such discovery is appropriate only when “one party’s discovery compliance has reasonably been drawn into question” so that there is “an adequate factual basis for an inquiry.” Otherwise, “neither a requesting party nor the court should prescribe or detail the steps that a responding party must take to meet its discovery obligations.” Id. (quoting The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018)). Here, the plaintiffs had provided only mere speculation that based on the total number of text messages between the couple, a certain production appeared suspect. This was “the definition of speculation, and speculation is never sufficient.” Id. at *3 (citations omitted). With the exception of an attachment to one text message that the plaintiffs had shown was missing, they had not provided any evidence that additional relevant messages existed.
Finally, Magistrate Judge Cole found that the discovery sought was not proportional to the needs of the case under Federal Rule of Civil Procedure 26(b)(1). “It should be obvious that given what this case is about, and that a large volume of [electronically stored information] has already been produced at significant expense to the defendants, discovery on discovery with no basis other than plaintiffs’ hopeful guess that there must be more texts about an engagement breakup is substantially out of proportion to the needs of the case.” Id. at *4.
2. In Crossman v. Carrington Mortg. Servs., LLC, 2020 WL 2114639 (M.D. Fla. May 4, 2020), Magistrate Judge Patricia D. Barksdale of the Middle District of Florida granted defendant’s motion to compel discovery of plaintiff’s social media accounts, finding no merit to plaintiff’s objections on relevance, privacy, and vagueness grounds.
In this employment discrimination litigation, plaintiff sought compensation for emotional distress, mental anguish, and loss of enjoyment of life due to defendant’s alleged racial and disability discrimination and retaliation. Id. at *1.
Defendant sought discovery of plaintiff’s Facebook and Instagram accounts. Plaintiff originally objected to all of defendant’s discovery requests on the grounds that the requests were “overly broad, invasive, and not reasonably calculated to lead to the discovery of admissible evidence.” When faced with the motion to compel, plaintiff supplemented her objections related to the social media requests on the basis of relevance and privacy.
Magistrate Judge Barksdale began her analysis by discussing the applicable portions of Federal Rules of Civil Procedure 26 and 37 that applied to defendant’s motion as well as the “non-binding but highly persuasive” Middle District Discovery Handbook. Id. at *2-3. Magistrate Judge Barksdale highlighted that the 2015 amendments to Federal Rule 26 eliminated the “reasonably calculated” standard for discovery by substituting the word “relevant” and made clear that “relevant” means within the scope of discovery. Magistrate Judge Barksdale also explained that Federal Rule 34(b)(2)(C) requires objections to state whether responsive materials are being withheld and that the Middle District Handbook disfavors generalized objections. Id. at *3.
Applying these standards, Magistrate Judge Barksdale noted that plaintiff’s original objections were improper because plaintiff used boilerplate objections and used the obsolete “reasonably calculated” standard in objecting. Id. at *4. Nevertheless, Magistrate Judge Barksdale considered plaintiff’s objections on the basis of relevancy, privacy, and vagueness.
Magistrate Judge Barksdale disposed of each objection. “On relevancy, common sense dictates that information in [plaintiff’s] social media, including her Facebook and Instagram accounts, relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered at the hands of [defendant], including loss of enjoyment of life.” With regard to the privacy objection, Magistrate Judge Barksdale noted that plaintiff “ceded some [privacy] by sharing her personal information with others on social media and by bringing this lawsuit subject to the public right of access.” Further, the implementation of a confidentiality agreement between the parties was sufficient to protect plaintiff’s privacy interests. Finally, with regard to vagueness, Magistrate Judge Barksdale observed that “counsel can ‘reasonably and naturally’ interpret the requests in view of the claims and defenses and through communication with opposing counsel to provide the information obviously sought.” Id. (citing to the Middle District Handbook).
Magistrate Judge Barksdale also rejected plaintiff’s contention that the information sought could be more easily obtained by deposing witnesses. Plaintiff failed to make any showing that deposing witnesses would “equate to the information on her social media.” Without such a showing, Magistrate Judge Barksdale found no reason to accept plaintiff’s assertion.
Finally, Magistrate Judge Barksdale found that awarding expenses was unwarranted, despite disposing of all of plaintiff’s objections and the fact that plaintiff originally used only generalized objections and failed to apply the correct standard. Rather, Magistrate Judge Barksdale noted that “both sides find some support in caselaw for their respective positions, which indicates reasonable minds can differ on the dispute.”
3. In Ross v. Lockheed Martin Corp., 2020 WL 4192566 (D.D.C. July 21, 2020), Judge Ketanji Brown Jackson in the District of Columbia denied plaintiffs’ request for pre-class certification discovery finding that plaintiffs had not demonstrated that such discovery would help them make a prima facie showing that their class action plausibly satisfies Fed. R. Civ. P. 23’s requirements.
In this Title VII litigation, plaintiffs alleged that Lockheed Martin had a policy of discrimination against African American employees. Plaintiffs sought pre-class certification discovery to assist in making the required prima facie “showing that their class action plausibly satisfied Rule 23’s certification requirements.” Id. at *1.
To receive precertification discovery, the plaintiff’ pleadings “must present plausible classwide claims.” Id. at *2. In other words, where a complaint “ ‘demonstrates that the requirements for maintaining a class action cannot be met,’ then it is reasonable to conclude that ‘no amount of discovery’ can overcome that deficiency.” Id. (quoting Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., 284 F.R.D. 238, 245-46 (E.D. Pa. 2012)). Importantly, the consideration for whether a plaintiff can receive precertification discovery is not predicated on the plaintiffs’ likelihood of success in class certification but rather on whether plaintiffs can make a prima facie showing using the proposed discovery. Id. at *3.
Judge Jackson held that plaintiff’s complaint made it manifestly implausible that the members of the proposed class action “suffered a common injury that can either be redressed through a single remedy on a classwide basis or be proven through common questions of fact that predominate over individualized proof of injury.” Id. at *1. Plaintiffs claimed that Lockheed Martin’s employee review process provided too much discretion, which led to discrimination. Judge Jackson noted, however, that the “the impropriety of classwide claims with respect to such an evaluation system is well established.” Id. at *7. Additionally, Judge Jackson observed that as pleaded, the class definition “presumably includes African-American employees who are perfectly situated and satisfied at Lockheed Martin.” Plaintiffs’ claims, therefore, could not be proven on a classwide basis to satisfy Rule 23’s predomination requirement. Finally, Judge Jackson held that the proposed class members’ injuries could not be redressed through an indivisible remedy.
The commonality issue could not be fixed through precertification discovery. Id. at *9. Judge Jackson explained that the issues in plaintiff’s pleading with regard to class certification could not be cured with a sufficient factual showing. Rather, “[p]laintiffs’ allegations about the [employee review] system are such that classwide injury is implausible, even if [p]laintiffs’ description of the system’s operation is factually accurate.” Simply put, the individual nature of the assessment system meant that no amount of factual discovery could show that the employee review system operated “in the same manner across the entire workforce or any subgroup thereof, much less produce a common injury that can be established by common proof.”
Judge Jackson also held that plaintiff’s breach of contract claims were so speculative that precertification discovery could not provide a sufficient factual basis for the plaintiffs to make a prima facie case for certification. Id. at *10. Plaintiffs alleged that the agreements between Lockheed Martin and the government were intended to impose a duty on Lockheed Martin to not discriminate against the putative class members. Judge Jackson held, however, that plaintiffs “failed to make a non-speculative allegation that the supposed anti-discrimination provisions in the unidentified contracts between Lockheed Martin and the federal government were plainly intended to create a duty towards the class members, as is necessary to support any plausible claim that Plaintiffs are third-party beneficiaries of said contracts.” Id (emphasis in original). At best, Judge Jackson held, plaintiffs offered only “rank speculation about the existence of contracts between Lockheed Martin and the federal government” and alleged no facts plausibly supporting the “requisite clear intent to allow Plaintiffs to sue for the breach of any contracts between Lockheed Martin and the federal government.”
4. In Brady v. APM Management, LLC, 2020 WL 4339328 (N.D. Ohio July 28, 2020), U.S. District Judge Pamela A. Barker of the Northern District of Ohio relied on the court’s inherent authority, 28 U.S.C. § 1927, and Fed. R. Civ. P. 11 and 26(g) in awarding the plaintiff sanctions of more than $22,000 against the defendants, their counsel, and counsel’s law firm for failure to comply with “the most basic discovery obligations.”
This Family and Medical Leave Act suit arose from the defendants’ termination of the plaintiff shortly before she was scheduled to return to work following medical leave. Following discovery, the plaintiff filed a motion for sanctions and fees with respect to the defendants’ and the defendants’ counsel’s conduct. During a hearing, the court ruled that sanctions were warranted pursuant to 28 U.S.C. § 1927 and Fed. R. Civ. P. 11 and 26(g) for the excess costs and reasonable expenses incurred by the plaintiff as a result of defendants’ and defendants’ counsel’s conduct. Id. at *1.
Judge Barker began her analysis by evaluating whether sanctions were appropriate under the court’s inherent authority: “[F]ederal courts have the inherent power to impose sanctions to prevent the abuse of the judicial process.” Id. at *2 (citation omitted). Courts may exercise this inherent power “when a party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons,’ or when the conduct was ‘tantamount to bad faith.’ ” Id. (citation omitted).
In this case, the defendants had consistently failed to produce documents or comply with “even the most basic discovery obligations” without the court’s involvement. The defendants also repeatedly made false representations that the plaintiff had been terminated because her job was outsourced. Once the plaintiff challenged this assertion through discovery requests, the defendants ultimately admitted that none of the plaintiff’s former responsibilities had been outsourced. This admission, which was supposedly based on information supplied by a never-before-identified witness, came six months into discovery and only when the defendants were faced with the possibility of sanctions for failing to comply with the plaintiff’s requests. Judge Barker determined that the defendants’ conduct had been in bad faith and that the court could impose sanctions against the defendant under its inherent authority. Id. at *2–*3.
With respect to defendants’ counsel, while counsel had made some of the representations, Judge Barker found that there was no evidence that counsel was aware of their falsity. Though counsel should have verified the defendants’ statements through evidentiary support, Judge Barker was unable to conclude that counsel had acted in bad faith. Therefore, she could not impose sanctions against counsel under the court’s inherent authority. Id. at *3.
Next, Judge Barker addressed the defendants’ intended defenses. The court had previously barred the defendants’ defense that the plaintiff’s job was outsourced, as they had failed to produce any documents demonstrating this fact. The plaintiff also asked the court to bar the defendants’ “new theory” of defense: that the plaintiff’s job was eliminated during an organizational restructuring in which other jobs, aside from the plaintiff’s, had been outsourced. Judge Barker declined to bar this new theory, noting that the plaintiff had a pending default judgment motion based on the defense’s conduct, and default would be more appropriately assessed once the default issue was fully briefed.
Judge Barker next addressed whether sanctioning the defendants for costs and fees associated with the plaintiff’s motion to compel was appropriate under Rule 37. “Rule 37 requires the payment of expenses associated with the grant of a motion to compel unless the ‘opposing party’s nondisclosure, response, or objection was substantially justified; or ... other circumstances make an award of expenses unjust.’ ” Id. at *4 (citation omitted). The court had previously granted a motion by the plaintiff to compel the defendants’ production of financial information, which the plaintiff sought as relevant to the issue of punitive damages. The defendants objected to the motion to compel, arguing that financial information was irrelevant to the plaintiff’s claims, given the statutory cap on damages. The defendants produced relevant, though out-of-circuit, case law to support their argument. Judge Barker found that because the defendants had provided some case law to support their position, they were substantially justified in objecting to the compelled production, notwithstanding that the court had not found merit to the argument. Therefore, Judge Barker declined to award fees or costs under Rule 37(a)(5) related to the plaintiff’s motion to compel.
Finally, Judge Barker addressed the amount of sanctions to be awarded to the plaintiff. The defendants sought a reduction in the amount requested by the plaintiff because the amount included attorneys’ fees related to a mediation and a subpoena that took place prior the plaintiff’s motion for sanctions. Judge Barker found that part of the conduct providing a basis for sanctions occurred before and during the mediation, making the mediation itself “futile.” Furthermore, the subpoena for documents to support the defendants’ statements that the plaintiff’s position was outsourced would never have been issued if the defendants had not made this false representation. Thus, fees and costs related to the mediation and subpoena were sufficiently related to the defendants’ misconduct. Id. at *5.
The defendants also argued that the attorney time for which the plaintiff sought payment of costs and fees was duplicative because there was no need for both attorneys to attend certain events. Judge Barker agreed that a reduction in the fee award was appropriate because one attorney had sufficient expertise and experience to cover the events alone.
Therefore, Judge Barker found that it had discretion to impose sanctions against the defendants under the court’s inherent authority, Rule 11, and Rule 26(g) and to impose sanctions against counsel under 28 U.S.C. § 1927, Rule 11, and Rule 26(g). Additionally, under Rule 11(c)(1), “[a]bsent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.” Id. at *6 (quoting Fed. R. Civ. P. 11(c)(1)). Therefore, Judge Barker imposed sanctions on the defendants, the defendants’ counsel, and that counsel’s law firm, jointly and severally, in the amount of $22,801.95.out the destruction of evidence at trial.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers.
Attorney Advertising—Sidley Austin LLP, One South Dearborn, Chicago, IL 60603. +1 312 853 7000. Sidley and Sidley Austin refer to Sidley Austin LLP and affiliated partnerships, as explained at www.sidley.com/disclaimer.
© Sidley Austin LLP