This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- A ruling from the U.S. District Court for the Western District of Pennsylvania denying competing motions regarding the defendants’ use of search terms and technology-assisted review (TAR), finding that the plaintiff could not impose on defendants her own TAR methodology or search terms
- An order from the U.S. District Court for the Northern District of California granting a motion for sanctions against the defendant for deleting, prior to the filing of the litigation, electronic records relating to the usage of the plaintiff’s software
- A decision from the U.S. District Court for the District of Connecticut addressing requests for “discovery on discovery,” including denying a request seeking to have the defendant catalog all of the devices containing responsive communications
- An opinion from the U.S. District Court for the Southern District of Florida granting a plaintiff’s motion to compel forensic examination of a defendant’s mobile phone and ordering that the parties follow certain protocols to ensure protection of the defendant’s privacy
1. A ruling from the U.S. District Court for the Western District of Pennsylvania denying competing motions regarding the defendants’ use of search terms and TAR, finding that the plaintiffs could not impose on defendants her own TAR methodology or search terms.
In In re Diisocyanates Antitrust Litigation, 2022 WL 173678 (W.D. Pa. Jan. 7, 2022), E-Discovery Special Master James C. Francis IV recommended denying competing motions from the parties regarding the defendants’ use of TAR and search terms and finding that plaintiffs could not impose on defendants their own TAR methodology or search terms and that defendants could implement their own proposed search terms and TAR methodology consistent with prior orders of the court.
In prior motion practice, the parties had litigated defendants’ use of TAR and search terms in this antitrust case. Special Master Francis explained that plaintiffs had earlier moved to compel defendants to use plaintiffs’ proposed search terms in order to identify the universe of electronically stored information (ESI) to which defendants should apply TAR and to use plaintiffs’ proposed methodologies to determine when to conclude the TAR process and to validate the search. Id. at *1. Defendants had earlier cross-moved for a protective order that would allow them to rely on their own list of search terms and their own TAR methodologies.
In a previous order, Special Master Francis had recommended that the parties’ prior competing motions should be denied. He had found that defendants’ proposed TAR methodology was unreasonable “because the validation procedure tested recall only for the search conducted by TAR, ignoring the documents eliminated by search terms” and “failed to take advantage of the capability of the defendants’ continuous active learning tools to analyze the marginal value of conducting additional search iterations beyond a chosen stopping point.” He had also declined to endorse defendants’ search terms, concluding that “their exclusive focus on hit rates was inappropriate and that they had failed to conduct systematic testing of their proposed terms” and that they had not sufficiently documented their assertion that plaintiffs’ proposed search terms would impose a disproportionate burden.
As for plaintiffs’ prior motion, Special Master Francis had found that plaintiffs’ proposed validation criteria for defendants’ TAR methodology exceeded the law’s requirements, such as by incorporating an analysis of human review error. Id. at *2. He declined to recommend plaintiffs’ protocol and determined that defendants should be permitted to identify reasonable search terms.
After Special Master Francis’ prior report and recommendation, defendants had indicated they would modify their TAR protocols to address flaws he had raised. Defendants had represented that if the parties did not agree on search terms, defendants would apply their own “but would perform a validation analysis that incorporated the search term phase as well as the TAR phase of the process.” Defendants had also committed to share the number and content of responsive documents identified in the documents processed by TAR so that plaintiffs could seek court review if they disagreed that the search was complete.
In response to the prior report and recommendation, and defendants’ proposal, plaintiffs had argued that the court should implement one of their three alternative solutions: 1) grant plaintiffs’ motion requiring defendants to implement plaintiffs’ proposed TAR procedures and run their proposed search terms, or forgo search terms and use only TAR; 2) adjudicate the search terms in dispute and ask Special Master Francis to fashion a TAR methodology; or 3) order defendants to produce all nonprivileged documents in their possession responsive to plaintiffs’ search terms. Plaintiffs had argued that the court should reject Special Master Francis’ deference to defendants’ choice of search methodologies and instead enter an order endorsing plaintiffs’ search terms and TAR protocols.
In response to the prior report and recommendation and the parties’ arguments, the court agreed that defendants were not compelled to adopt plaintiffs’ search terms or TAR methodologies and could proceed with their proposal. The court ordered defendants to provide plaintiffs the Bates numbers of all relevant documents obtained from the last two batches they searched, identify the batch the documents were found in, and identify the number of relevant but privileged documents withheld as well as provide the recall rate and calculations used to derive that rate. If plaintiffs did not agree with defendants, the parties were to meet and confer and present the dispute to the court for Special Master Francis to resolve.
After further discovery, the parties filed their present motions. Id. at *3. Plaintiffs sought an order requiring defendants to use their proposed search terms or, alternatively, establishing a process by which disputed search terms would be adjudicated. However, Special Master Francis stated that the “ship has sailed” with respect to any order requiring defendants to use plaintiffs’ proposed search terms or establishing a process to adjudicate disputed search terms. Special Master Francis stated that while he had previously left open the prospect of further litigation of search terms in a report and recommendation, any window of opportunity for further adjudication prior to the application of TAR closed when the court directed defendants to proceed with their proposed TAR methodology. Special Master Francis stated that this procedure specifically allowed defendants to rely on their chosen search terms subject to end-to-end validation that assessed the quality of review over both the search terms and TAR review stages.
Plaintiffs argued that revisiting the search term dispute was justified because when defendants adopted their protocol, the protocol incorporated the caveat that it was “necessarily general” because it was designed to “leave the parties flexibility to negotiate the details,” thereby anticipating further litigation concerning search terms. Special Master Francis disagreed, as defendants had emphasized when presenting their amended methodology to the court that their proposal “contemplated no further adjudication until the defendants deemed their search complete.” Defendants had argued that under Special Master Francis’s protocol, the producing party selected its own search terms and assumed the risk of assuring they were not unduly narrow.
Special Master Francis rejected plaintiffs’ argument that, by referring the motion to him, the court expected him to adjudicate the merits of any search term dispute. Special Master Francis reasoned that it was equally plausible that the motion was subject only to determination on procedural grounds. Id. at *4. While the court had rejected plaintiffs’ motion, plaintiffs were still entitled to challenge defendants’ production. Special Master Francis noted that defendants acknowledged that they have a “powerful incentive . . . not to use unduly narrow search terms,” and plaintiffs had remedies available to address inadequacies. Special Master Francis stated that the court stressed the need for the production to proceed immediately based on defendants’ protocol. Based on these factors, he recommended denying plaintiffs’ motion to compel.
Special Master Francis next addressed defendants’ motion for a protective order to permit them to use the search terms they disclosed to plaintiffs. He noted plaintiffs’ argument that defendants failed to demonstrate with specificity a clearly defined and serious injury if plaintiffs’ order was not granted, but he found that plaintiffs’ requested relief was precluded by the court’s prior order. He added that defendants had an interest in the order’s enforcement and did not need to show harm beyond the inherent prejudice when “the finality of a court order is undermined.”
Despite that, Special Master Francis described defendants’ motion for a protective order as “functionally the mirror image of the plaintiffs’ motion to compel” and therefore “should be denied as moot insofar as it seeks the same relief that necessarily flows from denial of the plaintiffs’ motion.”
2. An order from the U.S. District Court for the Northern District of California granting a motion for sanctions against the defendant for deleting, prior to the filing of the litigation, electronic records relating to the usage of the plaintiff’s software.
In Fourth Dimension Software v. Der Touristik Deutschland GmbH, 2021 WL 5919821 (N.D. Cal. Dec. 15, 2021), U.S. District Judge Charles R. Breyer granted a motion for sanctions against the defendant for violating its duty to preserve usage records for the plaintiff’s software prior to the filing of the litigation.
In this breach of contract action, plaintiff Fourth Dimension Software (FDS) alleged that defendant Der Touristik Deutschland GmbH (DTDE) breached a software development contract for a tour operator automation system called Phoenix by exceeding use limitations on certain licenses for FDS’ proprietary software tools and by providing Phoenix and the software tools to a third party, Aovo, despite an express prohibition in the parties’ contract. During discovery, FDS learned that DTDE had removed the software tools from its machines before the litigation was filed but after the parties had engaged in discussions regarding FDS’ potential claims against DTDE. Id. at *8. DTDE’s deletion of the software tools had also removed all electronic records of usage for Phoenix and the tools, and FDS moved for sanctions based on the deletion.
Judge Breyer began his analysis by setting forth the remedies for failure to preserve ESI under Rule 37(e), stating that “if a party has a duty to preserve electronically stored information, the party failed to take reasonable steps to preserve it, and the loss of the information prejudiced another party, then the court may order measures no greater than necessary to cure the prejudice.” Id. at *3 (citing Fed. R. Civ. P. 37(e)(1) (internal quotations omitted)). Judge Breyer continued that if “the court also finds that the party acted with the intent to deprive another party of the information’s use in litigation, then the court may: a) presume that the lost information was unfavorable to the party; b) instruct the jury that it may or must presume the information was unfavorable to the party; or c) dismiss the action or enter a default judgment.” Id. (citing Fed. R. Civ. P. 37(e)(2)).
Judge Breyer next set forth the relevant background. In September 2017, FDS wrote DTDE a letter alleging that DTDE violated provisions in the parties’ contract and threatening to initiate litigation if they could not come to an agreement. Id. at *8. The letter stated that if FDS sued DTDE, FDS would serve document requests. After prelitigation discussions failed to resolve their disputes, FDS sent a letter in August 2018 attaching a draft complaint that FDS was prepared to file. On November 9, DTDE’s chief information officer sent FDS a letter stating it would terminate the license contracts for FDS’s software tools at the end of 2018 and remove the software tools from its machines. Further negotiations failed to result in any resolution, and FDS filed a complaint against DTDE in early 2019.
FDS learned during discovery that usage records were deleted when DTDE removed the software tools from its machines at the end of 2018. As a result, DTDE was no longer able to produce certain key information regarding Phoenix, the software tools, and the number of licenses used.
Judge Breyer found that DTDE had a duty to preserve the usage records, that it violated that duty by deleting the records, that the deletion prejudiced FDS, and that DTDE acted with an intent to deprive FDS of the records’ use. Id. at *9. Judge Breyer stated that the duty to preserve extends “to that period before litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Id. (quoting CTC Glob. Corp. v. Huang, 2019 WL 6357271, at *2 (C.D. Cal. July 3, 2019)). In this case, DTDE’s duty to preserve the usage records arose in August 2018 at latest. Id. at *9. Judge Breyer reasoned that DTDE knew or should have known about the potential claims and the relevant evidence because FDS gave DTDE notice of the license overuse and third-party use claims in September 2017, the parties spent nearly a year attempting to negotiate a settlement, and the August 2018 letter gave DTDE notice that FDS intended to file a complaint.
Judge Breyer was not persuaded by DTDE’s argument that its duty to preserve did not begin until April 2019, when FDS filed its complaint. DTDE claimed that the FDS’s September 2017 letter was not a credible threat of litigation due to FDS’s history of empty threats. Judge Breyer responded that the duty would at least have arisen during the months-long negotiations that culminated in the August 2018 letter.
DTDE also argued that it was a question of first impression as to whether repeated threats of litigation on the same alleged conduct can impose on a party the interminable duty to preserve ESI. Judge Breyer rejected this as well, explaining that whether FDS’s previous threats of litigation prompted a duty to preserve was not before the court. Further, because the present issues involved conduct beginning in 2017, they were necessarily distinct from issues raised prior to that time period. Additionally, DTDE implicitly recognized the merit of FDS’s present claims by having negotiated a resolution, while it had denied claims in FDS’s prior threats. Judge Breyer concluded that perhaps unlike with the earlier threats, the circumstances from 2017 to 2018 supported a finding of a duty to preserve.
Judge Breyer stated that the court had discretion as to whether the loss of information was prejudicial. Id. at *10. He continued that whether the loss of information was prejudicial depended in part on the importance of the information to the case. Judge Breyer stated that FDS did not provide much specific evidence to support its argument that it was “severely prejudiced” by DTDE’s failure to preserve, but he acknowledged that the usage records appeared to “go straight to the heart of FDS’s claims” because records showing the extent to which Aovo used Phoenix and to which DTDE exceeded its license caps would be strong, or dispositive, evidence supporting FDS’s breach of contract claim. Those records would also enable a precise damages calculation.
Judge Breyer pointed out that DTDE did produce logs showing the number of Aovo users with access to Phoenix for a certain period of time, which FDS conceded was relevant. FDS also prepared an expert report calculating damages for the overuse of the software tools based on estimates of how the license usage would increase over time. But Judge Breyer concluded that the loss of records was prejudicial to the extent FDS was deprived of direct evidence of the specific amount the software tools were overused, and FDS had no way to determine the specific number of Aovo users with access to Phoenix.
Judge Breyer analyzed whether DTDE intended to deprive FDS of records, explaining that the severity of the sanctions for loss of ESI increased if a party established that the information was intentionally destroyed. He stated that deletion of information qualified as intentional if a party had notice that the documents were potentially relevant to the litigation before they were destroyed. Courts consider the timing and method behind the deletion in assessing whether the deletion was intentional.
Judge Breyer stated that the record supported the inference that DTDE intentionally destroyed the usage records. Id. at *11. He reasoned that DTDE knew or should have known months before they were destroyed that the usage records were highly relevant to FDS’s claims, as the parties had been discussing the claims for nearly a year. Further, the August 2018 letter informed DTDE that it intended to file a complaint. DTDE argued that because it disclosed to FDS it would be deleting the records in two letters, it did not act with the requisite intent. Judge Breyer disagreed that the letters indicated that DTDE intended to delete usage records, explaining that the letters stated only that DTDE intended to phase out Phoenix and the software tools. Further, the first letter was sent in 2015, well before DTDE’s duty to preserve arose. The second letter was sent in September 2018, after the duty arose, and it did not change that duty.
Because the record supported the finding that DTDE intentionally destroyed the usage records and the destruction prejudiced FDS, Judge Breyer examined which sanction under Rule 37(e)(2) was appropriate. He swiftly rejected dismissing the case or issuing a default judgment, the most severe forms of sanction, reasoning that FDS did not show that it suffered severe prejudice or that the loss of the records prevented it from proving its case. But Judge Breyer stated that the record showed that, at the time of the destruction, DTDE knew that FDS intended to file suit and the records were highly relevant, indicating that the “records were unfavorable to DTDE and that DTDE deleted them to prevent FDS from using them in litigation.” Judge Breyer held that this conduct warranted an adverse inference instruction.
Judge Breyer ordered the following instruction: “DTDE had electronic records showing the extent to which it used the Tools and the extent to which Aovo used the Tools. These records are highly relevant to this lawsuit, and DTDE had a duty to preserve them. DTDE violated its duty to preserve the records by deleting them before they could be reviewed by FDS. You may presume that the records were unfavorable to DTDE, including that the records showed that DTDE breached its contract with FDS by exceeding the license caps for the Tools.”
3. A decision from the U.S. District Court for the District of Connecticut addressing requests for “discovery on discovery,” including denying a request seeking to have the defendant catalog all of the devices containing responsive communications.
In Doe v. Wesleyan University, 2021 WL 4704852 (D. Conn. Oct. 8, 2021), Magistrate Judge Thomas O. Farrish granted in part and denied in part plaintiff’s motion to compel Wesleyan University (Wesleyan) to respond to requests seeking “discovery on discovery.”
This lawsuit centered around plaintiff’s allegations that Wesleyan broke its promise to conduct a fair disciplinary process before it expelled her for cheating on exams using the university’s learning management system, Moodle. A professor accused plaintiff of cheating on final exams by accessing Moodle while exams were being administered. These allegations prompted a university proceeding in August 2017, after which Wesleyan determined that plaintiff “more likely than not” cheated on her exams and expelled her. Plaintiff sued Wesleyan, alleging that Wesleyan broke its promise to provide a fair disciplinary process by failing to comply with its obligations, standards, policies, and procedures set forth in its Student Handbook.
Plaintiff served interrogatories and requests for production (RFPs) asking Wesleyan, among other things, to identify all electronic devices used to transmit documents and communications about the allegations in the complaint and all devices used in the administration of Moodle. Six of the RFPs concerned Moodle in various ways. Wesleyan objected to the interrogatories on the basis that the identities of its electronic devices bore no relevance to the issues of the case and would be unduly burdensome to assemble. Wesleyan objected to the six RFPs relating to Moodle on the basis that they were temporally overbroad, irrelevant, and unduly burdensome.
Plaintiff moved to compel Wesleyan to identify electronic devices and produce documents relating to the allegations in the complaint and the administration’s use of Moodle. Plaintiff filed her motion nearly a year after serving her discovery requests, with her counsel attributing the delay to a protracted meet-and-confer process. Wesleyan, however, argued that discovery showed that plaintiff clearly cheated on her exams and failed to preserve a forensic image of the phone she used to cheat and therefore was trying to “divert the Court’s attention from the evidence of cheating.”
Laying out the relevant principles of discovery under Rule 26, Magistrate Judge Farrish first emphasized the wide scope of discovery permitted under Rule 26(b)(1), including types of information not directly pertinent to the incident in suit such as “other incidents of the same type, or involving the same product.” Id. at *3 (quoting Fed. R. Civ. P. 26 advisory committee’s note to 2000 amendments). Additionally, information about organizational arrangements or filing systems of a party can be discoverable “if likely to yield or lead to the discovery of admissible information.” Id. at *3. The scope of discovery also included information about “the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Id. (quoting Fed. R. Civ. P. 26 advisory committee’s note to 2015 amendments).
Magistrate Judge Farrish then began an analysis of the two interrogatories at issue. The first, Interrogatory No. 3, asked Wesleyan to identify all electronic devices used by Wesleyan faculty members, staff members, administrators, and other employees to transmit documents and communications relating or referring to the allegations stated in the complaint. Id. at *4. Wesleyan objected on the ground that the interrogatory was irrelevant to the issues at hand and that complying would “impose an enormous and unwarranted burden.” Wesleyan rejected plaintiff’s offer to limit the request to specific individuals plus any members of Wesleyan’s information technology services department then unknown to her.
The second, Interrogatory No. 4, asked Wesleyan to identify all electronic devices used by Wesleyan in the administration of Moodle during the summer of 2017. Wesleyan objected on similar grounds as to Interrogatory No. 3 and similarly rejected plaintiff’s offer to limit the request to the administration of Moodle for two courses for which she was accused of cheating.
Magistrate Judge Farrish stated that the two interrogatories did not seek information at the core of the concept of relevance and that plaintiff did not explain her assertion that the information sought would tend to make her claims and opposition to Wesleyan’s claims more probable. Specifically, plaintiff had “not identified any disputed issue of material fact that would be meaningfully informed by the question of whether, for example, a particular communication was conducted over a particular smartphone or laptop.”
Nonetheless, Magistrate Judge Farrish continued his analysis to determine whether these interrogatories sought “information that is within the permissible scope of discovery even if not directly relevant to a claim or defense.” Id. at *5. Magistrate Judge Farrish critiqued the timing of plaintiff’s motion, commenting that plaintiff “asked the Court to approach this question as if she had only recently filed her case, and only recently begun discovery.” Plaintiff explained that the information was relevant toward developing an ESI protocol and framing further discovery demands, and without it she could not pursue an effective discovery strategy. Magistrate Judge Farrish rejected this argument, pointing out that discovery had been ongoing for nearly two years. While plaintiff argued that she needed Wesleyan to list its devices to know where communications resided, she had already requested the communications themselves and Wesleyan had produced nearly 3,000 pages of responsive communications.
Treating these requests as “follow-up interrogatories to ensure that the production is complete,” Magistrate Judge Farrish stated that courts may order discovery designed to test the sufficiency of a party’s discovery efforts in order to capture additional relevant material. He added, however, that where a party seeks “discovery on discovery, that party must provide an adequate factual basis to justify the discovery, and the Court must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Id. (quoting Kaye v. N.Y. City Health & Hosps. Comm’n, 2020 WL 283702, at *1 (S.D.N.Y. Jan. 21, 2020)).
Magistrate Judge Farrish found that the record did not provide an adequate factual basis for requiring Wesleyan to catalog all the devices containing responsive communications. Id. at *6. He reasoned that Wesleyan had represented it had produced all relevant documents and communications, and plaintiff provided no factual basis to suggest the production was incomplete. He noted that parties sometimes make a showing of documents they expected to receive but did not; when asked at oral argument, however, plaintiff’s counsel responded that he could not say for certain one way or another. Magistrate Judge Farrish therefore denied plaintiff’s motion for an order compelling responses to these two interrogatories without prejudice to renewal if she developed an adequate factual basis.
Magistrate Judge Farrish next addressed plaintiff’s document requests relating to Moodle. He stated that RFPs Nos. 6, 7, and 8 sought all documents and communications referring to the installation, implementation, and administration of Moodle. Id. at *8. RFP No. 9 sought documents and communications referring to Moodle training received by IT staff, and RFPs 10 and 11 sought job tickets and internal reports relating to Moodle. Wesleyan objected on the basis that these requests were overly broad and further that these requests were relevant only to plaintiff’s negligence, and her negligence claims had been dismissed. Id. at *9.
Magistrate Judge Farrish stated that parties “ordinarily cannot pursue discovery on claims that have been dismissed.” He stated that plaintiff did not identify any remaining allegation in her complaint to which her Moodle-related requests would be relevant but that she did argue that these requests would be relevant to one of Wesleyan’s affirmative defenses: that plaintiff cheated on her exams. Plaintiff claimed that responsive documents would provide an alternative explanation to Wesleyan’s claim that she cheated. Specifically, plaintiff argued that discovery into the installation, implementation, and administration of Moodle might reveal that the computer notations that Wesleyan regarded as evidence of cheating were actually products of the bugs alleged in her initial complaint.
Magistrate Judge Farrish stated that to justify plaintiff’s requested relief, her theory “should be supported by more than pure speculation” under Rule 26(b)(1). In other words, “the party seeking discovery must make a prima facie showing that the discovery sought is more than merely a fishing expedition.” Id. (quoting Williams v. City of Hartford, 2016 WL 3102001, at *2 (D. Conn. June 2, 2016)). Magistrate Judge Farrish stated that plaintiff did “not even theorize how Moodle’s alleged bugs would affect the outcome of any relevant factual dispute.” Wesleyan, 2021 WL 4704852, at *9.
Magistrate Judge Farrish noted one exception relating to Wesleyan’s statements that it uncovered ironclad evidence of cheating by comparing plaintiff’s iPhone web search history with Moodle’s time stamps. Id. at *10. Plaintiff argued that her phone might have been set to Coordinated Universal time and some of the incriminating searches might have taken place earlier in the day. While Wesleyan’s rebuttal was that the iPhone and Moodle logs correspond to the minute, plaintiff argued that this made discovery as to time zone settings critical. Magistrate Judge Farrish sided with plaintiff, considering her theories “sufficiently outside the realm of a ‘fishing expedition’ to support discovery.” He determined that plaintiff was entitled to ascertain for herself, using discovery, whether it was true that her web search history and the Moodle logs reflected the same time zone.
Accordingly, Magistrate Judge Farrish granted plaintiff’s motion in part, to the extent that Wesleyan was ordered to produce responsive documents relating to how Moodle recorded or logged time, including the time zone used in the Moodle logs. Magistrate Judge Farrish otherwise denied plaintiff’s motion.
4. An opinion from the U.S. District Court for the Southern District of Florida granting a plaintiff’s motion to compel forensic examination of a defendant’s mobile phone and ordering that the parties follow certain protocols to ensure protection of the defendant’s privacy.
In Measured Wealth Private Client Group, LLC v. Foster, 2021 WL 1215218 (S.D. Fla. Mar. 31, 2021), Magistrate Judge William Matthewman granted plaintiff’s motion to compel forensic examination of a defendant’s mobile phone and ordered that the parties follow certain protocols to ensure protection of that defendant’s privacy. Id. at *2.
In its motion to compel, plaintiff had requested an order allowing it to conduct a forensic examination of one defendant’s mobile phone to recover certain text messages and iMessages dated between January 1 and December 31, 2019. Id. at *1. In response to the motion, defendant argued that the “temporal scope” of the discovery sought was “too broad and would result in the production of irrelevant text messages and iMessages, that the discovery sought could be obtained from other individuals,” and that plaintiff’s request constituted “a mere fishing expedition.”
In granting plaintiff’s motion, Magistrate Judge Matthewman made five findings. First, he noted that before filing its motion to compel, plaintiff had “properly propounded written discovery requests” seeking the same materials at issue in the motion to compel. Second, he determined that the text messages and iMessages that plaintiff sought were “relevant and proportional to the claims and defenses in the case.” Third, he observed that defendant had not changed her phone since the relevant time period. Id. at *2. Fourth, defendant had been “obstructionist with regard to her production of text messages and iMessages during the discovery process.” Indeed, although defendant had initially agreed to produce certain responsive text messages and iMessages, she ultimately failed to do so. Fifth and finally, Magistrate Judge Matthewman concluded that based on his review of the materials plaintiff filed under seal along with the motion to compel, “Plaintiff [was] not engaging in an improper fishing expedition” but “ha[d] made a legitimate discovery request.”
In light of these findings, Magistrate Judge Matthewman concluded that because plaintiff had made a sufficient showing of need for the discovery sought, forensic analysis was appropriate in this case. In reaching this conclusion, he rejected defendant’s argument that plaintiff could obtain the requested text messages and iMessages from other individuals, noting that defendant is a party in the case whereas the “other individuals,” plaintiff’s former clients, were not. Id. at *2 n.4. And he found that “it is much more efficient for Plaintiff to conduct a forensic examination than to subpoena multiple non-parties.”
However, in determining that forensic analysis was appropriate, Magistrate Judge Matthewson also emphasized the importance of “protecting Defendant’s privacy as to the personal matters on her phone.” Id. at *2. To protect defendant’s privacy interests, Magistrate Judge Matthewman ordered defendant to submit the mobile phone she used for an independent examination subject to certain protocols he borrowed from another case, Wynmoor Cmty. Council Inc. v. QBE Ins. Corp., 280 F.R.D. 681 (S.D. Fla. 2012), modifying them “as necessary.” Id. at *2-3.
First, Magistrate Judge Matthewson ordered the parties to meet and confer within seven days regarding the designation of an independent forensic computer expert to serve as an “officer of the court.” Id. at *3. If the parties could not agree on the selection of an expert, Magistrate Judge Matthewman ordered that they submit their recommendations to him, and he would select the expert. Second, after signing a confidential undertaking statement pursuant to the parties’ agreed protective order, the expert (and any needed outside support) would then “mirror image Defendant’s cell phone.” And if “security measures” prevented the expert from taking a mirror image of the cell phone, the expert would “acquire as much data as possible from the device.” Third, he ordered the parties to meet and confer within 10 days to discuss search terms. If the parties could not agree, they were to each submit recommendations, and he would select the search terms. However, in setting forth this protocol, Magistrate Judge Matthewson stressed that the parties’ counsel “should confer with the expert to the extent possible to arrive at reasonable and necessary search terms,” that this process should be “a collaborative effort,” and that he would “only determine search terms as a last resort.” Fourth, after search terms were selected and the expert “mirror imaged or otherwise acquired the data from Defendant’s cell phone,” the expert would search the acquired data using the search terms. The results of that search and an electronic copy of all responsive documents would then be provided to defendant’s counsel. Fifth, within 10 days of receiving the search results from the expert, defendant was ordered to produce all nonprivileged responsive documents to plaintiff and identify those responsive documents not produced on a privilege log. If defendant had any doubts about whether certain messages should be produced, Magistrate Judge Matthewman noted that she could seek leave to submit any such messages for in camera review. Finally, within five days of sending defendant the results of his or her search, the independent expert would provide “a signed affidavit detailing the steps he or she took to mirror image or acquire data from Defendant’s phone and search the data for the search terms.”
In terms of costs, Magistrate Judge Matthewson required plaintiff to pay for all fees and costs of hiring the independent expert in the first instance but indicated that he would “determine at a later date whether costs and expenses should be apportioned or otherwise paid by Defendant.” For example, “if the data recovered . . . contains data or documents responsive to Plaintiff’s prior requests for production which Defendant reasonably could have provided in the regular course of discovery without a forensic examination,” he would “revisit t[he] issue of costs and consider charging Defendant for fees and costs of the independent expert or imposing the fees and costs on the parties in a duly appropriate and apportioned manner.” In closing, Magistrate Judge Matthewman ordered defendant “to maintain the phone at issue” in anticipation of the forensic analysis, stating that she “shall not delete any texts or iMessages.”
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