This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- an order from the U.S. District Court for the Western District of Washington granting Defendants a protective order limiting deposition topics proposed by Plaintiffs under Rule 30(b)(6) constituting “discovery on discovery,” finding that Plaintiffs could not inquire about Defendants’ response to and search for records for certain discovery requests but could inquire about Defendants’ retention and preservation of text messages
- a decision from the U.S. District Court for the Northern District of Illinois finding that a document demand from the U.S. Department of Justice (DOJ) related to potential anticompetitive conduct by Defendants’ competitors did not give rise to a duty to preserve documents for a subsequent civil litigation (even where the scope of preservation overlapped) but that a subsequent document demand from the DOJ targeting conduct by one of the Defendants did give rise to such a duty
- a ruling from the U.S. District Court for the Northern District of Illinois declining to order a forensic examination of Plaintiff’s electronic devices after she produced previously undisclosed but highly relevant audio recordings near the end of discovery but requiring Plaintiff to produce metadata for the recordings and permitting Defendant to take additional discovery
- an opinion from the U.S. District Court for the Middle District of Florida refusing to compel Defendant to produce the entire set of documents hitting on certain search terms, regardless of their responsiveness, based on a “handful” of deficiencies in Defendant’s production
1. An order from the U.S. District Court for the Western District of Washington granting Defendants a protective order limiting deposition topics proposed by Plaintiffs under Rule 30(b)(6) constituting “discovery on discovery,” finding that Plaintiffs could not inquire about Defendants’ response to and search for records for certain discovery requests but could inquire about Defendants’ retention and preservation of text messages.
In Adamson v. Pierce County, 2023 WL 7280742 (W.D. Wash. Nov. 3, 2023), U.S. Magistrate Judge Grady J. Leupold addressed whether Plaintiffs had made a sufficient showing to compel Defendants to provide testimony on their discovery process and retention of text messages.
This action was brought by Sheriff’s Department deputies from Pierce County, Washington, against Pierce County and certain of its employees for alleged deprivation of their civil rights under 42 U.S.C. § 1983 and related state law claims. Id. at *1. The court noted a “seemingly contentious relationship between counsel during discovery” and had denied two motions to compel additional discovery by Plaintiffs.
Plaintiffs then served a notice of deposition on Pierce County under Federal Rule of Civil Procedure 30(b)(6). Id. at *2. Among other topics, Plaintiffs sought testimony about Pierce County’s search for records responsive to discovery requests and its responses to certain discovery requests, an alleged destruction of text communications beginning in 2019, and text communications and text message policies generally. Defendants filed a motion for a protective order seeking to avoid the 30(b)(6) deposition.
Magistrate Judge Leupold first addressed whether Plaintiffs had violated the meet-and-confer provision of Rule 30(b)(6), which requires that “before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” He explained that Plaintiffs did not send Defendants their proposed 30(b)(6) topics before issuing the notice and did not follow up with Defendants as to any response but instead assumed that Defendants did not object to the topics and would produce a witness on the noticed date. However, Defendants did not provide any objections or attempt to schedule any conference until two days before the noticed deposition date. Magistrate Judge Leupold stated that the parties “share a burden to meet and confer regarding the matters at issue in a 30(b)(6) deposition,” and the failure of one party to respond does not absolve the other of its duty to do so. Id. at *3. He noted that the “facts here cut against both parties,” and he ultimately concluded that Defendants’ motion for a protective order satisfied the meet-and-confer requirement of Rule 30(b)(6).
Magistrate Judge Leupold then began his analysis on the merits of Defendants’ motion by describing the general standards applicable to protective order motions under Rule 26(c)(1)(D), which permits a court to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including . . . forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters.” He noted that the party seeking a protective order “carries a heavy burden of showing why discovery should be denied.”
But Magistrate Judge Leupold also explained that “discovery on discovery” is generally disfavored and, to be both relevant and proportional to the needs of the case, a party seeking it “must show a specific deficiency in the other party’s production.” Id. at *5 (collecting cases). Under this standard, Magistrate Judge Leupold denied Plaintiffs’ request for 30(b)(6) testimony regarding Pierce County’s search for records responsive to discovery requests and its responses to certain discovery requests. He found that these topics were “impermissibly broad meta-discovery.”
But Magistrate Judge Leupold granted in part Plaintiffs’ request for 30(b)(6) testimony regarding an alleged destruction of text communications and text message policies generally. He noted that Plaintiffs appeared to have identified a gap in Pierce County’s text record production beginning in 2019. Pierce County argued that Plaintiffs’ lawyer already had information related to these topics, but it was unclear how any such information would explain the alleged gap in Pierce County’s productions. Accordingly, Magistrate Judge Leupold found that Plaintiffs had established an adequate factual basis to allow limited “meta-discovery” regarding text messages and text messaging policies after 2019.
However, Magistrate Judge Leupold limited these topics to permit Plaintiffs to ask about Pierce County’s retention and preservation of text messages after 2019, including how Pierce County retained and preserved text messages; the ability of Pierce County employees to delete text messages from work phones; any restrictions implemented by Pierce County or imposed on Pierce County employees to restrict their ability to delete text messages; and whether any metadata exists that would provide information about deleted text messages and what information this metadata provides.
2. A decision from the U.S. District Court for the Northern District of Illinois finding that a document demand from the DOJ related to potential anticompetitive conduct by Defendants’ competitors did not give rise to a duty to preserve documents for a subsequent civil litigation (even where the scope of preservation overlapped) but that a subsequent document demand from the DOJ targeting conduct by one of the Defendants did give rise to such a duty.
In In re Local TV Advertising Antitrust Litigation, 2023 WL 5607997 (N.D. Ill. Aug. 30, 2023), U.S. District Judge Virginia M. Kendall addressed whether to impose spoliation sanctions for deletion of various categories of electronically stored information (ESI) based on Defendants’ receipt of various document demands from the DOJ.
In this putative antitrust class action, Defendant Griffin Communications, Inc. (Griffin) was alleged to have colluded with its competitors regarding the price or other terms for spot advertising. Id. at *1. Griffin had received a civil investigative demand (CID) letter from the DOJ on September 11, 2017, related to an antitrust investigation into the proposed merger of Sinclair Broadcasting Group and Tribune Media Company. The September 2017 CID letter instructed Griffin to “take all necessary steps” to preserve documents relevant to the investigation, including ESI. After receiving the letter, Griffin placed a companywide “email hold” and a hold on information that was responsive to the CID letter.
Griffin received a second CID letter from the DOJ on February 8, 2018, this time related to an investigation into whether Griffin was exchanging competitive information with other broadcast stations in the Oklahoma City area or other areas. Id. at *2. The February 2018 CID letter required Griffin to preserve documents and ESI related to various topics for the Oklahoma City area and any other area in which Griffin exchanged competitive information with other broadcast stations.
Griffin implemented a document hold through its IT department “within one week” of receiving the February 2018 CID letter. Griffin’s chief executive officer testified that he met with IT personnel and legal counsel and “made sure that Griffin put a document hold on everything and that no documents would be destroyed” and “instructed the staff.” In addition, Griffin’s director of local sales in Tulsa testified that employees were instructed to save all electronic and paper documents and that document-preservation responsibilities fell to the company’s sales account representatives, who were in charge of keeping their documents and uploading them to shared drives for backing up by the IT department.
Griffin received a third CID letter from the DOJ on March 16, 2018, again related to an investigation of “competitively sensitive information exchanges in unreasonable restraint of trade.”
Judge Kendall explained that Griffin had neither a formal ticketing system (to execute and track employees’ IT requests and actions) nor an informal documentation scheme (to track actions related to IT). Id. at *3. Nor did Griffin track its physical IT assets, such as employees’ computers, as would be typical for a similarly situated company. Because Griffin did not track its IT actions or IT physical assets, the judge explained that it was not possible to determine precisely how Griffin implemented its litigation holds in response to the DOJ CIDs.
Judge Kendall next described several categories of ESI that Griffin failed to preserve. First, Griffin did not preserve emails or computer files for Lex Sehl, an account executive supervisor who left Griffin on August 10, 2017, and Griffin could not identify when this ESI was deleted or what company-issued computer Sehl used before he left Griffin. Griffin represented that its general practice was to delete a departed employee’s emails and files. Griffin did not have a practice of retaining a departed employee’s emails and files, nor a practice of documenting when a departed employee’s emails and files were deleted. Sehl’s supervisor had access to Sehl’s email account after his departure and produced emails sent to Sehl’s account between August 10, 2017, and October 15, 2018. Additionally, Griffin produced over 3,000 emails and other documents sent by Sehl to others, or by others to Sehl, and obtained and produced text messages from Sehl’s personal cell phone. Otherwise, Sehl’s predeparture files and emails were deleted and were unrecoverable.
Second, Griffin did not preserve various ESI, including OneDrive files, hard drives, and text messages, for three account executives. Id. at *4. And third, Griffin did not preserve text messages from Griffin’s president and its former chief operating officer, Rob Krier. Krier reportedly was “not sophisticated with respect to technology matters” and had a habit of deleting “almost all text messages,” which continued up to his deposition.
Turning to her analysis, Judge Kendall first described the standards under Federal Rule of Civil Procedure 37(e) applicable to Plaintiffs’ motion for spoliation sanctions. She noted that Plaintiffs moved under both Rule 37(b) and the court’s inherent authority to sanction a party that has abused the judicial process, but she found that Rule 37(e) “provides the sole source of sanctions to address the loss of relevant ESI that was required to be preserved but was not because reasonable steps were not taken, resulting in prejudice to the opposing party.”
Judge Kendall explained that under Rule 37(e) a court may sanction a party after finding, first, that “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery,” and second, either (1) that the loss prejudiced the party’s opponent or (2) that the party acted with intent to deprive an opponent of the information’s use in litigation. Id. at *5 (quoting Rule 37(e)). She further explained that Rule 37(e) sanctions require finding, as a threshold matter, that relevant ESI “should have been preserved in the anticipation or conduct of litigation.”
Judge Kendall further explained that determining whether and when a duty to preserve arose requires consideration of the extent to which a party was on notice that litigation was likely and that the information would be relevant. If a duty to preserve existed, the court must next consider whether the party failed to take reasonable steps to do so, although perfection in this regard is not required and “overly expensive preservation methods are not required when substantially effective and less costly measures are available.” Finally, Judge Kendall stated that once Rule 37(e)’s threshold requirements are met, sanctions may be awarded only upon a finding of prejudice, which involves “the thwarting of a party’s ability to obtain the evidence it needs for its case.” She noted that Rule 37(e) grants judges discretion to determine how best to assess prejudice in particular cases.
With respect to appropriate sanctions, Judge Kendall noted that if she were to find that Griffin intentionally deprived its opponent of evidence in litigation, she could impose any of the most severe spoliation sanctions: presuming the evidence unfavorable, giving an adverse inference jury instruction, dismissing the action, or entering a default judgment. Id. at *6. The intent-to-deprive determination equates to a finding of bad faith — that the spoliator had “a purpose of hiding adverse evidence,” as in other spoliation contexts. However, loss of ESI through negligence or even gross negligence does not justify the harshest discovery sanctions.
Turning to the specific categories of documents at issue, Judge Kendall first concluded that Griffin did not fail to preserve Sehl’s emails because they were lost before a duty to preserve them arose. Id. at *6-8. She noted that Griffin’s duty to preserve ESI did not arise until, at the earliest, Griffin received the DOJ’s February 2018 CID letter. By that point, Sehl had not been a Griffin employee for six months and Griffin typically did not retain former employees’ emails and files after departure. She concluded that no evidence showed that Sehl’s emails or other files existed beyond November 8, 2017 — three months after he left Griffin and three months before Griffin could have reasonably anticipated litigation.
Judge Kendall rejected Plaintiff’s argument that Griffin’s receipt of the September 2017 CID letter triggered its duty to preserve Sehl’s ESI because the September 2017 CID letter (unlike the February 2018 CID letter) did not suggest either imminent or likely litigation involving Griffin. She concluded that nothing about the September 2017 CID letter suggested that Griffin was the subject of an investigation into anticompetitive conduct at that time.
Judge Kendall also rejected Plaintiff’s argument that an instruction in the September 2017 CID letter to preserve documents relating to “competition between any of Tribune, Sinclair, and Griffin” triggered a duty to preserve Sehl’s documents. She found that even if some of Sehl’s communications might have been relevant to competition between Sinclair and Griffin, “the September 2017 CID letter did not, in itself, create a duty to preserve Sehl’s ESI that might also be relevant to litigation before it was reasonably anticipated.” Judge Kendall quoted extensively from the advisory committee’s note on Rule 37(e)’s 2015 amendment on this point, which addresses the distinction between “the common-law obligation to preserve in the anticipation or conduct of litigation” and “an independent requirement that the lost information be preserved.” In particular, the advisory committee’s note cautions that “such independent preservation requirements may be addressed to a wide variety of concerns unrelated to the current litigation.” She further quoted: “The fact that a party had an independent obligation to preserve information does not necessarily mean that it had such a duty with respect to the litigation, and the fact that the party failed to observe some other preservation obligation does not itself prove that its efforts to preserve were not reasonable with respect to a particular case.” Id. at *7 (quoting the advisory committee’s note on Rule 37(e)’s 2015 amendment). Judge Kendall stated that “[t]he touchstone for a party’s duty to preserve evidence remains the reasonable foreseeability of its involvement in litigation.”
Judge Kendall ultimately concluded that while the September 2017 CID letter might have imposed a duty to preserve ESI for the DOJ’s 2017 merger investigation, that letter “did not provide Griffin with reasonable notice of impending litigation for its own anticompetitive conduct” and “Griffin’s independent obligation to preserve ESI for the DOJ is distinct from its duty to preserve ESI” for the litigation. Id. at *8. She contrasted this with the February 2018 CID letter, after which “Griffin was on notice that private civil litigation could reasonably follow from the DOJ’s investigation into its alleged anticompetitive conduct” because the February 2018 CID letter explicitly named Griffin as a subject of investigation and specified the alleged anticompetitive conduct that the department suspected. As a result, she found that Griffin’s duty to preserve Sehl’s emails arose in February 2018 and the emails were not lost after Griffin’s duty arose.
Turning to an analysis of the ESI for the three account executives that Griffin did not retain, Judge Kendall found that spoliation may have occurred, but no sanctions were warranted. Id. at *8-9. She noted that one of the account executives left Griffin in November 2017 before Griffin had a duty to preserve relevant ESI. With respect to the other two account executives, who left around or after receipt of the February 2018 CID letter, Judge Kendall noted that “[t]he record provides very few facts about why the OneDrive files, hard drive[s], and text messages of these employees were not preserved.” For purposes of Plaintiffs’ motion, she therefore assumed that Griffin should have preserved this ESI but declined to impose sanctions because no prejudice to Plaintiffs resulted from its loss. In particular, she found that Plaintiffs had not shown “the value of the missing information in the full context of Griffin’s voluminous ESI production.” Id. at *9. She further noted that there was no evidence that Griffin intended to deprive Plaintiffs of this information’s use in litigation; rather, the lost ESI was likely “due to Griffin’s generally haphazard approach to its IT systems.” In this regard she noted that “[n]egligent failure to preserve . . . does not clear the high bad-faith bar.”
Finally, with respect to Krier’s deleting nearly all his text messages until January 2023, Judge Kendall found that Rule 37(e)’s elements were all met. She concluded that at least some information in the text messages was likely relevant and that the messages could not be recovered. She also found that Griffin failed to take reasonable steps to preserve this ESI, noting that Griffin had provided no documentation of its litigation holds nor how they were implemented beyond “generalized testimony from a handful of company officers and employees.” She stated that the “lack of attorney involvement rendered Griffin’s preservation efforts substandard.”
Judge Kendall described the lack of reasonable preservation steps taken by Griffin in general, and failure to preserve Krier’s text messages specifically, including that Griffin did not even maintain a standard IT ticketing system to track IT actions, and counsel relied on Griffin to self-collect and self-monitor preservation of their ESI. Id. at *10. She stated that “Griffin is a sophisticated enough corporate entity that the lack of documented attorney involvement in and oversight of a significant litigation hold is baffling.”
Next, Judge Kendall held that Plaintiffs were prejudiced by the loss of Krier’s text messages. Id. at *11. She found that at least some of the messages “very likely” contained relevant information and that there was “enough evidence to suggest their relevance to Plaintiffs’ claims that Griffin engaged in anticompetitive, collusive behavior.” Further, “Plaintiffs’ ability to use Krier’s text messages as evidence of such behavior would go a long way toward proving their claim that the highest levels of Griffin’s leadership engaged in anticompetitive conduct,” and Plaintiffs were “deprived of the opportunity to know the precise nature and frequency of those private communications, which occurred during a critical time period.” However, she found that there was insufficient evidence of bad faith intent because the record suggested negligence rather than intent to conceal adverse information.
Turning to an appropriate remedy for the spoliation of Krier’s text messages, Judge Kendall rejected several of Plaintiffs’ requested sanctions, including discovery into Griffin’s written litigation hold, appointment of a neutral forensic expert, and presentment and prohibition of evidence related to loss of this ESI. She concluded that these sanctions “would send the parties down a rabbit hole for little tangible gain.” However, she held that “limited cost-shifting sanctions” were appropriate here to reimburse Plaintiffs for the expenses incurred in connection with their efforts to understand and remedy the deletion. Id. at *12. She noted that she had “discretion to award appropriate fee-shifting sanctions to make Plaintiffs whole for their investigation into discovery to which they were entitled.”
3. A ruling from the U.S. District Court for the Northern District of Illinois declining to order a forensic examination of Plaintiff’s electronic devices after she produced previously undisclosed but highly relevant audio recordings near the end of discovery but requiring Plaintiff to produce metadata for the recordings and permitting Defendant to take additional discovery.
In Alipourian-Frascogna v. Etihad Airways, SPJC, 2023 WL 5934897 (N.D. Ill. Sept. 12, 2023), U.S. Magistrate Judge Sheila Finnegan addressed the standards for imposing the “extraordinary remedy” of a forensic examination of Plaintiff’s electronic devices.
Plaintiff filed this litigation against her former employee, Defendant Etihad Airways, bringing claims under Title VII of the Civil Rights Act of 1964 related to employment decisions allegedly based on race and national origin. Id. at *1. Near the close of discovery, Plaintiff produced four audio recordings of conversations between Plaintiff and other employees of Defendant. Defendant was unaware of these recordings, which had been made without consent of the other parties to them, and the recordings were produced without any metadata relating to their creation.
After learning of the audio recordings, Defendant sought discovery regarding when Plaintiff’s counsel learned of the recordings and why they were not produced earlier, the identity of the devices and software on which the recordings were made, and whether any other recordings were deleted. Id. at *2. Defendant also sought to compel Plaintiff to submit any personal devices on which she recorded and/or stored the audio recordings for a forensic examination and to produce the audio recordings in their native format. Defendant further requested information about the identity of the person making each recording, where the recording was made, and the date of the recording.
Magistrate Judge Finnegan began her analysis by noting that the relevance of the audio recordings was not in dispute. Among other reasons for this, the parties raised contentions that the audio recordings demonstrated that a witness had committed perjury or justified the taking of additional depositions. Magistrate Judge Finnegan stated that the audio recordings could also be evidence that Plaintiff destroyed or failed to preserve relevant ESI, and Defendant was entitled to explore how the Plaintiff plausibly could have obtained, and then forgotten about, the recordings, producing them only after most of the discovery in the case was done and when the disclosure appeared to benefit her. For these reasons, Magistrate Judge Finnegan determined that discovery into the evidentiary foundation and the making of the recordings was necessary to allow the court to determine their admissibility.
Magistrate Judge Finnegan next addressed whether Plaintiff could be compelled to re-produce the audio recordings in a native format with all associated metadata. She found that the metadata for the audio recordings was relevant to the evidentiary foundation for the recordings and therefore granted Defendant’s motion in this regard.
Magistrate Judge Finnegan then turned to the question of whether to compel a forensic examination of the devices on which the audio recordings were made. Id. at *5. She explained that a forensic ESI examination is “an extraordinary remedy that is required only if the moving party can actually prove that the responding party has concealed information or lacks the expertise necessary to search and retrieve all relevant data.” She noted the importance of protecting the nonmoving party’s privacy interests, stating that “[m]ere suspicion or speculation that an opposing party may be withholding discoverable information is insufficient to support an intrusive examination of the opposing party’s electronic devices or information system.”
Defendant argued that a forensic examination was necessary to investigate the “creation, storage, transfer, and/or deletion of any of the Audio Files and/or other, yet-unproduced recordings of telephone conversation with Etihad employees.” In particular, Defendant argued that a forensic exam was appropriate because Plaintiff either intentionally concealed the audio recordings or lacked the competence to locate and identify additional recordings. In response, Plaintiff contended that “her memory was sparked and she went looking for the material that she thought might be there. Finding it, she provided it.”
Magistrate Judge Finnegan found that several factors weighed in favor of ordering the requested forensic examination, including (i) Plaintiff’s late production of key evidence, (ii) unanswered questions about the creation of the audio recordings, and (iii) Plaintiff’s counsel’s statement that he “ha[d] no knowledge as to the device” on which the recordings were made. But she found that she was not prepared to order an examination to proceed based on the record before her. Instead, she concluded that it was sufficient to grant the additional discovery into the audio recordings, after which Defendant could renew its request for a forensic examination.
In addition to the discovery already ordered and the production of the audio recordings in their native format with accompanying metadata, Magistrate Judge Finnegan ordered that Plaintiff’s counsel provide Defendant’s counsel with an affidavit that — after consultation with Plaintiff and a reasonable and good faith search — all responsive audio recordings and transcripts in Plaintiff’s possession, custody, and control have been produced and none have been withheld.
4. An opinion from the U.S. District Court for the Middle District of Florida refusing to compel Defendant to produce the entire set of documents hitting on certain search terms, regardless of their responsiveness, based on a “handful” of deficiencies in Defendant’s production.
In Davis v. Lockheed Martin Corporation, 2023 WL 6845250 (M.D. Fla. Oct. 17, 2023), U.S. Magistrate Judge Daniel C. Irick addressed whether Plaintiff had identified sufficient deficiencies in Defendants’ production to require Defendant to produce all documents that hit on the agreed search terms regardless of responsiveness.
The discovery dispute in this toxic-tort case revolved around Defendant’s production of documents concerning the chemical compound hexavalent chromium. Pursuant to the parties’ agreed-on ESI protocol, Defendant identified and reviewed a subset of about 15,000 documents that hit on search terms related to hexavalent chromium. Defendant then conducted a responsiveness review on those documents and produced about 2,800 documents to Plaintiff. Plaintiff later claimed to have discovered two hexavalent chromium documents that were responsive to Plaintiff’s discovery requests but not produced by Defendant. Id. at *1.
Following a hearing on a motion by Plaintiff to compel production of additional hexavalent chromium documents, the court directed Defendant to re-review portions of its ESI and produce any additional responsive and non-privileged documents. While complying with this order, Defendant discovered and disclosed a handful of previously unproduced hexavalent chromium documents. Plaintiff then filed a second motion to compel, this time requesting that Defendant produce all the remaining 15,000 documents that hit on the hexavalent chromium search terms. Id. at *2.
Magistrate Judge Irick denied Plaintiff’s motion, finding that Plaintiff was attempting to avoid Defendant’s responsiveness review by another means. He explained that there was no legal support for the proposition that an error in Defendant’s production would entitle Plaintiff to “unfettered access to all the raw results from Defendant’s ESI searches.” He further noted “it is commonly understood that discovery is not perfect,” and Plaintiff’s identification of an error in Defendant’s production provided no basis for the broad relief that Plaintiff was requesting.
Magistrate Judge Irick further explained that he would not compel the production of thousands of documents that Defendant had reviewed and found to be unresponsive to Plaintiff’s discovery requests. Id. at *3. He explained that Defendant had consistently asserted that it complied with its discovery obligations in response to Plaintiff’s document requests and had stated that it had “produced all responsive, non-privileged documents identified from a reasonable review of the results from searches conducted pursuant to the agreed-upon ESI protocols.” Magistrate Judge Irick concluded that in the face of those long-standing discovery responses, Plaintiff had provided no legal authority that would allow him to compel the production of thousands of nonresponsive documents.
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