This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- a decision from the U.S. District Court for the Northern District of Illinois denying on proportionality grounds a request to add as custodians three of a defendant’s lawyers, where the potential burdens on the defendant and the court outweighed the plaintiffs’ need for the proposed custodians’ documents
- another decision from the U.S. District Court for the Northern District of Illinois applying a Federal Rule of Evidence 502(d) order to find that a defendant had not waived privilege over a set of documents produced by one of its former employees, even though the documents previously had been the subject of a privilege dispute in a prior action
- a ruling from the U.S. District Court for the Western District of Washington ordering “discovery on discovery” in the form of a renewed 30(b)(6) deposition on the plaintiff’s record management processes where the defendant provided “specific and tangible evidence” of the plaintiff’s failure to preserve relevant electronically stored information (ESI)
- an opinion from the U.S. District Court for the District of Massachusetts denying without prejudice a motion to compel based on the plaintiffs’ failure to engage in sufficient consultation with the defendants regarding the dispute or to specify adequately what documents were missing or why any such missing documents were relevant to the plaintiffs’ claims
- a decision from the U.S. District Court for the Eastern District of New York denying a request for a technology-assisted review (TAR) protocol that would have required the parties to produce the documents deemed nonresponsive as part of their initial sample estimation sets
- a decision from the U.S. District Court for the Northern District of California denying a request for a provision in the parties’ protocol governing electronically stored information (ESI) that would have required negotiation of search terms and specific search term and review validation methods and instead requiring the parties to disclose information and negotiate in good faith to resolve any disputes regarding validation methods
- a ruling from the U.S. District Court for the Middle District of Pennsylvania refusing a forensic evaluation of a nonparty individual’s cell phone and finding it would not be proportional to require the Defendant to expand its search for ESI
- an opinion from the U.S. District Court for the Southern District of Florida denying a request to add the Defendant’s chief executive officer (CEO) as a custodian based on considerations of proportionality
At the outset of discovery in this action challenging the merger between Deutsche Telekom and T-Mobile, T-Mobile proposed a list of 29 custodians. Id. at *1. Plaintiffs’ counterproposal, provided six weeks later, included a total of 60 custodians for T-Mobile to search, including at least four senior T-Mobile attorneys. After meeting and conferring, T-Mobile agreed to add 10 of Plaintiffs’ 31 additional proposed custodians but declined to agree to the proposed attorney custodians because their documents would likely be privileged but not relevant. The parties continued to negotiate the custodian list and agreed on 50 custodians, but they failed to resolve their dispute as to three of the attorneys, and Plaintiffs moved to compel T-Mobile to add them.
Magistrate Judge Cole began his analysis with a discussion of the evils of modern discovery, which he noted had been described as a “runaway train,” a “monster on the loose,” and the “bane of modern litigation.” Id. at *2. He highlighted language from a prior decision stating that “discovery rules are not a ticket to an unlimited, never-ending exploration of every conceivable matter that captures an attorney’s interest. Parties are entitled to a reasonable opportunity to investigate the facts — and no more.” Id. at *1 (quoting Vakharia v. Swedish Covenant Hosp., 1994 WL 75055, at *2 (N.D. Ill. 1994)).
In this context, Magistrate Judge Cole noted the centrality of proportionality under the federal rules, which takes into consideration “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. at *2. (citing Rule 26(b)(1)).
He emphasized that proportionality “requires a common sense and experiential assessment” and quoted from U.S. Supreme Court Chief Justice John Roberts’ 2015 Year- End Report on the Federal Judiciary that the addition of proportionality to Rule 26(b) “crystalize[d] the concept of reasonable limits on discovery through increased reliance on the common-sense concept of proportionality.”
Magistrate Judge Cole noted that the parties also disputed who carried the burden on the issue of proportionality. He explained that “courts tend to go both ways regarding whose burden it is to show discovery is proportional or disproportional” and decided that “talking about one side’s or another’s burden of proof might not be terribly helpful.” Id. at *2 n.3. But Magistrate Judge Cole emphasized that he had “broad discretion” in resolving the parties’ dispute and concluded that “the discretionary needle points in [T-Mobile’s] favor.” Id. at *1.
Turning to the specifics of the parties’ dispute, Magistrate Judge Cole noted that the parties had agreed to a large number of custodians (50), which he considered remarkable because “they are essentially all of the requesting parties’ choosing.” Id. at *3. Referring to the Sedona Principles, Magistrate Judge Cole pointed out that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI].” Id. (quoting The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 52 (2018)).
Magistrate Judge Cole next addressed whether Plaintiffs’ request for three additional custodians was proportional to the needs of their case, starting with the Plaintiffs’ monetary stake. He explained that Plaintiffs appeared to be claiming as damages an annual increase in wireless service charges between $16 and $72 for each class member, which he stated “was not exactly inconsequential … but neither is it necessarily staggering.”
Magistrate Judge Cole next addressed “the importance of the issues at stake in the action” in light of the “meager” amounts involved. He noted that Plaintiffs had not addressed this issue, but he expressed skepticism regarding Plaintiffs’ challenge to the merger at issue because the merger “was subjected to significant scrutiny by the Federal Communications Commission, the United States Department of Justice Antitrust Division, 14 State Attorneys General, two federal judges, and others.”
Magistrate Judge Cole also emphasized the burdens on the court implicated by the requested discovery. He mused that the privilege logs for the proposed lawyer custodians could be “staggering” and would likely lead to “an extensive dispute.” He explained that in camera reviews in connection with such disputes would place significant burden on the court, which “may well be required to evaluate large evidentiary records without open adversarial guidance by the parties.” Id. (quoting United States v. Zolin, 491 U.S. 554, 571 (1989)). Magistrate Judge Cole also noted that such disputes could prove costly to taxpayers and other litigants that “have to wait for judicial attention while this case’s discovery disputes all but monopolize the court’s attention and efforts.” Id. at *4.
Magistrate Judge Cole found that these considerations tipped the “proportional-to-the-needs-of-the-case” scale “decidedly over to the disproportionate side,” especially given Plaintiffs’ “unpersuasive arguments regarding the relevance of the discovery from the three lawyers.” Id. at *4-5. In particular, he emphasized that Plaintiffs’ case relied on postmerger evidence of the alleged anticompetitive effects of the merger at issue, but the three proposed lawyer custodians were primarily involved in negotiating the merger.
Ultimately Magistrate Judge Cole found that Plaintiffs’ motion to compel T-Mobile exceeded the “ultimate and necessary boundaries” of discovery and denied the motion. Id. at *5.
This lawsuit involved civil antitrust claims arising out of alleged no-poach agreements. Id. at *1. Early in the case, the court had entered an order under Federal Rule of Evidence 502(d) that had been jointly agreed to by the parties. Later in discovery, Plaintiffs issued a subpoena to Dr. Bridget Fanning, the former chief talent officer of Defendant SCAI Holdings, LLC. At her deposition, Fanning produced more than 100,000 documents on two thumb drives that she had produced previously to the government in connection with a prior criminal action. SCAI had successfully clawed back 10,719 of those documents on privilege grounds in that prior criminal action.
Two weeks after Fanning’s deposition, SCAI emailed Plaintiffs notifying them of SCAI’s belief that the documents produced by Fanning included privileged documents, asking Plaintiffs not to review the documents, and seeking a meet and confer with Plaintiffs to “discuss a process to ensure the protection of SCAI’s privileges.” Id. at *2. SCAI proposed that it run “privilege-related search terms” on the Fanning documents, cull out the resulting documents for further review, and reproduce nonprivileged documents on a rolling basis. Although Plaintiffs did not agree to this proposal, SCAI subsequently reproduced a total of 99,031 of the Fanning documents and produced a privilege log identifying 1,813 documents with redactions and 8,180 documents withheld in their entirety based on the attorney-client privilege and work-product doctrine.
Plaintiffs filed a motion for an order finding that SCAI had waived privilege over the Fanning documents.
Magistrate Judge Kim began his analysis by discussing the rules on waiver. He noted that generally the party seeking to establish that documents are protected by the attorney-client privilege or the work-product doctrine carries the burden of showing that they apply, but both may be waived through disclosure of protected information to a third party or adversary.
Magistrate Judge Kim further explained that Federal Rule of Evidence 502(b) can prevent a waiver of privilege if the disclosure is inadvertent and reasonable steps are taken to prevent the disclosure and to rectify the error. Id. at *3 (citing the Sedona Conference, Commentary on the Effective Use of Federal Rule of Evidence 502(d) Orders, 23 Sedona Conf. J. 1 (2022)). In determining whether a document was inadvertently produced and such reasonable measures were taken, courts look at the circumstances surrounding the disclosure, including (1) the reasonableness of the precautions taken to prevent disclosure, (2) the time taken to rectify the error, (3) the scope of the discovery, (4) the extent of the disclosure, and (5) the overriding issue of fairness.
Magistrate Judge Kim also discussed Federal Rule of Evidence 502(d), which allows a party to move for, or the court to enter sua sponte, an order allowing the parties to conduct and respond to discovery expeditiously and without the need for exhaustive preproduction privilege reviews. He noted that an order under Rule 502(d) can be “a mighty powerful tool” in clawing back privileged documents, even where a party did not undertake “a reasonable privilege review process.”
Turning to the merits of the dispute, Magistrate Judge Kim rejected Plaintiffs’ argument that Rule 502(b) should apply to SCAI’s privilege claim and required a finding of waiver. Id. at *4. He noted that if Rule 502(b) did apply, “the circumstances would present a close call as to whether waiver is warranted” because SCAI had notice that Fanning would produce documents that had previously been produced and subject to privilege claims.
But Magistrate Judge Kim concluded that the Rule 502(d) order entered in the case prevented waiver of the attorney-client privilege or work-product doctrine “regardless of whether the disclosure was inadvertent or any efforts were taken to prevent or rectify the same.” He pointed to the “plain language of” the Rule 502(d) order providing that “[t]he production of documents ... subject to protection by the attorney-client and/or protected by the work-product, joint defense, or other similar doctrine, or by another legal privilege protecting information from discovery, shall not constitute a waiver of any privilege or other protection.” Id. (emphasis in original).
Magistrate Judge Kim also found that Plaintiffs bore the burden of protecting the privilege after receiving SCAI documents believed to be privileged, because the Rule 502(d) order required a receiving party to “take reasonable steps to promptly notify the” producing party of the production of potentially privileged documents so that the producing party “may determine whether it wishes to have the documents returned or destroyed.”
Magistrate Judge Kim noted that some courts have limited Rule 502(d) orders where a “completely reckless disclosure” has occurred, but he found that this would not require a finding of waiver in this case. He noted SCAI should have been aware of the privilege issues after experiencing a similar issue in the prior criminal actions and “could have done more to avoid the current dispute.” But Plaintiffs did not notify SCAI of the privileged documents as required by the Rule 502(d) order, and SCAI asked Plaintiffs to stop reviewing the documents and worked promptly to reproduce nonprivileged documents to Plaintiffs over the next several weeks. In this regard, Magistrate Judge Kim found that SCAI’s “actions were not completely reckless as to support a finding of waiver under Rule 502(d).”
Magistrate Judge Kim also rejected Plaintiffs’ argument that SCAI’s purported failure to provide “a timely adequate privilege log” required a finding of waiver. Id. at *5. He explained that SCAI was required to complete a new privilege review and corresponding log for documents identified as privileged and that SCAI “managed to provide Plaintiffs with a new privilege log — setting forth the requisite bases for each claim of privilege, immunity, or other protection — for nearly 10,000 documents within two weeks” of Plaintiffs’ motion. Magistrate Judge Kim concluded that SCAI’s production of its privilege log “therefore was not untimely, and accordingly, waiver based on delay is not warranted.”
Accordingly, Magistrate Judge Kim denied Plaintiffs’ motion for a finding of waiver and ordered that any privileged documents in Plaintiffs’ possession be handled in accordance with the terms of the Rule 502(d) order.
This lawsuit arose from Plaintiff Comair’s termination of a contract to purchase airplanes from defendant Boeing after Boeing suspended deliveries of airplanes to its customers following the crash of Ethiopian Airlines Flight 302. Id. at *1.
Judge Martinez explained that discovery had “not gone well” in the case, including Comair’s failure to produce any ESI dated prior to May 2018 despite agreeing to produce ESI starting from January 1, 2013. Boeing complained that Comair produced only 6,600 pages of ESI and “fewer than 400 emails,” with “more than half of Comair’s meager production consist[ing] of public media articles, publicly-available reports, and contracts to which Boeing is a party.” Judge Martinez had granted an earlier motion to compel filed by Boeing and cautioned Comair that its “failure to produce such records may serve as a valid basis for a discovery sanctions motion at a later date.”
Boeing continued to complain that Comair produced very few additional documents and that Comair’s 30(b)(6) witness was unable to explain why there were so few records and what happened to Comair’s data. Id. at *2. Boeing also argued that Comair objected to deposition topics regarding Comair’s preservation, collection, and production of ESI and that Comair’s 30(b)(6) witness “stonewalled” about Comair’s record management processes.
Boeing moved for “an order compelling Comair to produce a properly prepared Rule 30(b)(6) witness to testify regarding Comair’s document preservation and collection and the loss of discoverable evidence.” Id. at *1. Boeing argued that discovery regarding Comair’s document management was necessary because critical documents were missing, including financial documents alleged to support Comair’s damages claims. In response, Comair complained that Boeing was seeking “discovery on discovery” aimed at “depos[ing] Comair’s lawyers on how discovery was put together” with “zero evidence of any purported spoliation by Comair.”
Judge Martinez began his analysis with a survey of the relevant rules, including Rule 26(b)(1) permitting discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” He explained that “discovery into a party’s discovery process” may be appropriate when “there is some indication that a party’s discovery has been insufficient or deficient.” But Judge Martinez cautioned that “discovery on discovery” is “disfavored, and requests for this information are closely scrutinized,” requiring the requesting party to provide “specific and tangible evidence of a material failure of an opponent’s obligations.” If such discovery is appropriate, the “court should select the narrowest discovery tool possible to avoid side-tracking the discovery process.”
Turning to Boeing’s arguments, Judge Martinez found that Boeing had pointed to “specific and tangible evidence” rising “above mere speculation” of Comair’s failure to retain “materials that are obviously relevant.” Id. at *3. He also found that Boeing’s proposal of a second round of in-person 30(b)(6) depositions in Seattle was “close to the narrowest discovery tool possible.” Judge Martinez ordered that Boeing would be permitted to take a single additional deposition over Zoom, which was “proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”
But Judge Martinez denied Boeing’s request for fees and costs in connection with the motion to compel, finding that Comair’s refusal to produce “discovery on discovery” was “substantially justified given the requirement for Boeing to demonstrate particularized reasons for this discovery.”
This case arose from “a large scale and complex fraud that functioned simultaneously as a pyramid and a Ponzi scheme” in connection with the internet telecom company Telexfree, Inc. Id. at *1. In discovery, Plaintiffs sought documents from defendants Allied Wallet, Inc., a company that allegedly processed fraudulent transactions to consumers’ accounts, and two related individuals, Ahmad Khawaja and Mohammed Diab. Allied Wallet later claimed that a separate company, Allied Waller Ltd. (AWL), provided relevant services to Telexfree, although it turned out that AWL was also operated by Khawaja. Allied Wallet claimed that AWL was in receivership in the United Kingdom and that Allied Wallet did not have possession, custody, or control of AWL’s documents.
Plaintiffs were not able secure documents from AWL’s liquidator in the United Kingdom because the liquidator claimed to have “extremely limited” access to AWL’s physical books and records. Plaintiffs claimed that, in fact, AWL’s books and records were stored on servers in the United States controlled by Allied Wallet and that Allied Wallet’s business had been acquired by a separate company, Fintech International LLC. Plaintiffs claimed that Fintech was also controlled by Khawaja.
Plaintiffs filed a motion seeking to compel Allied Wallet to supplement its production of documents by producing all relevant documents responsive to Plaintiffs’ first request for production, including with documents possessed by AWL and Fintech. Id. at *2.
Magistrate Judge Robertson began her analysis with a survey of the relevant rules, including Rule 26(b)(1) permitting discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” She noted that the party seeking information in discovery has the burden of showing its relevance but “when a party resists the production of evidence, it bears the burden of establishing lack of relevancy or undue burden.”
Turning to her analysis of Plaintiffs’ motion, Magistrate Judge Robertson first held that Plaintiffs’ document requests to Allied Wallet “were drafted sufficiently broadly that they encompassed AWL documents.” Id. at *3. This was because Plaintiffs defined the relevant parties to include “any organization or entity which the responding Defendant(s) manages or controls,” thereby extending to AWL because it was controlled by Khawaja. Magistrate Judge Robertson also found that Plaintiffs showed “good reasons to be concerned about the integrity and comprehensiveness of the search for discoverable documents” conducted by Allied Wallet.
But Magistrate Judge Robertson found that Plaintiffs had not “explained with any specificity what documents are missing, or why any such missing information is relevant to Plaintiffs’ claims.” She noted that to carry their burden, Plaintiffs needed to demonstrate that Allied Wallet failed to produce relevant documents responsive to Plaintiffs’ document production requests that are in the “possession, custody, or control” of Allied Wallet that Plaintiffs “genuinely need to prosecute their case.” But Plaintiffs had not shown that they engaged with counsel for Allied West about the claimed deficiencies.
Based on these circumstances, Magistrate Judge Robertson held that she could not rule on Plaintiffs’ motion because Plaintiffs had not fully complied with “either the federal or local rules regarding consultation with opposing counsel prior to filing their motion.” She noted that the purpose of the consultation requirement was “to enable the parties to attempt to narrow, if not resolve, their dispute,” and the court would not “expend its energies when the parties have not sufficiently expended their own.”
Accordingly, Magistrate Judge Robertson denied Plaintiffs’ motion to compel without prejudice to Plaintiffs renewing the motion if Plaintiffs could identify “the categories of documents they claim have not been produced, explain their importance to Plaintiffs’ ability to recover from these defendants, and explain with specificity the efforts they have made to resolve their discovery dispute without court intervention in compliance with Fed. R. Civ. P. 37(a)(1) and L.R. 37.1(a) and (b).”
5. In In re Exactech Polyethylene Orthopedic Products Liability Litigation, No. 22-md-3044 (NGG)(MMH), 2024 WL 4381076 (E.D.N.Y. Oct. 3, 2024), U.S. Magistrate Judge Marcia M. Henry addressed competing provisions for the use of TAR 2.0 in the parties’ discovery protocol.
This multidistrict litigation involved claims that Plaintiffs were injured by certain products manufactured by Defendant Exactech.
At the outset of discovery, the parties submitted to the court several disputes including whether the applicable TAR 2.0 protocol in the parties’ ESI protocol should permit Plaintiffs to review nonprivileged documents coded as “non-responsive” during Exactech’s document review to ensure the responsiveness of those documents. Id. at *12. Magistrate Judge Henry noted that the parties’ competing TAR protocols were otherwise “nearly identical.”
But Plaintiffs proposed a provision in the ESI protocol providing that Exactech would “make available to Plaintiffs the nonprivileged documents coded as nonresponsive” in Exactech’s estimation sample (and provide a privilege log for any such documents Exactech claimed were privileged). Plaintiffs further proposed that the ESI protocol require the parties to meet and confer “[s]hould a disagreement arise regarding the responsiveness of certain documents within the sample.”
Plaintiffs argued that their proposal “efficiently explores the issue of Exactech’s responsiveness at the beginning of the production process instead of at the end.” Id. at *13. But Exactech disputed that Plaintiffs had a right to be involved in a producing party’s responsiveness.
At the outset of her analysis, Magistrate Judge Henry noted that Plaintiffs sought “discovery on discovery” and therefore “must provide an adequate factual basis to justify the discovery.” Relying on prior decisions in Kaye v. New York City Health & Hosps. Corp., No. 18-CV-12137 (JPO)(JLC), 2020 WL 283702 (S.D.N.Y. Jan. 21, 2020), and Hyles v. New York City, No. 10- CIV-3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016), she explained that courts “must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process.” She concluded that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”
With respect to TAR, Magistrate Judge Henry explained that courts generally decline to intervene in a responding party’s decisions about how to use TAR unless the requesting party shows a specific deficiency in production or unreasonableness in the process. Id. (citing The Sedona Conference, TAR Case Law Primer, Second Edition, 24 Sedona Conf. J.1, 27–30).
Magistrate Judge Henry found that the parties had “largely agreed to a TAR protocol including detailed information regarding the collection criteria used and the culling and review process” and that “[t]his is sufficient information to make the production transparent.” She also noted that Plaintiffs’ position regarding review of nonresponsive documents was “wholly unsupported by the law.”
Finally, Magistrate Judge Henry rejected an argument that Exactech’s TAR implementation required oversight because Exactech was ordered to produce documents that were miscoded as privileged in another litigation. Id. at *14. She noted that Plaintiffs had not demonstrated any deficiencies in Exactech’s TAR protocol as applied in the current litigation but could raise any issues with the court if Plaintiffs later found deficiencies in Exactech’s production as a result of its improper application of the TAR protocol.
Accordingly, Magistrate Judge Henry adopted Exactech’s proposed TAR 2.0 protocol.
At the outset of discovery, the parties submitted several disagreements regarding the appropriate validation protocol for ESI review and discovery, including (1) whether a producing party should disclose its search terms before the review process (and whether input from the requesting party should be considered in determining search terms); (2) whether recall or elusion was the appropriate evaluation method for validating the efficacy of a search; and (3) whether Plaintiffs’ proposal of 98% +/-2% or Defendants’ proposal of 95% +/-5% was the appropriate confidence metric for sampling. Id. at *1.
Magistrate Judge Illman first addressed the parties’ dispute regarding search terms. Plaintiffs argued that a requesting party should have input into the search terms used by a producing party. Defendants opposed this request, arguing that “search term validation” was not required by the court’s model ESI orders and that “courts do not find that in the first instance, the receiving party has a right to examine and evaluate the way the production was made or require collaboration in the review protocol and validation process.” Id. (citing The Sedona Conference, TAR Case Law Primer, Second Edition, 24 Sedona Conf. J.1, 39 (2023)).
Magistrate Judge Illman found that “the disclosure of search terms is appropriate and reasonable” and ordered that a producing party would be required to disclose its terms. Id. at *2. However, he agreed with Defendants that a requesting party should not have input in determining search terms because that “raises the specter of too many future delays and disputes over methodology and search term formulation.”
As to search methodologies, Magistrate Judge Illman ordered that the parties’ ESI protocol would contain a provision requiring the parties to “adopt reasonable and proportionate methodologies to identify, search, collect, cull, review, and produce ESI as required under applicable legal standards.” He further ordered that the ESI protocol would recognize that “different data sets may implicate different methodologies to identify, search, collect, cull, review, and produce responsive and nonprivileged ESI” and would require the parties to “meet and confer in good faith regarding any potential disputes over their respective ESI productions.”
Finally, Magistrate Judge Illman turned to the Parties’ dispute regarding validation. He directed that the parties would be required “to disclose their evaluation method for validating the efficiency of searches as well as their method for identifying the confidence metric for their sampling.” Therefore, “in light of the need for efficient and effective discovery (as well as the prevailing legal standards),” Magistrate Judge Illman ordered that the parties’ ESI protocol would require each party to “take reasonable steps to validate its review process,” including “using quality control measures to determine whether its production is missing relevant ESI or contains substantial amounts of irrelevant ESI” and “make any necessary adjustments or corrections to its process.”
In addition, Magistrate Judge Illman ordered that the parties’ ESI protocol would permit a requesting party to make reasonable requests for additional information regarding the validation methods used by the producing party and that the producing party would “disclose the level of end-to-end recall” (in other words, the percentage of responsive documents in the collection that were identified as responsive by the producing party’s methodology). Finally, he ordered that the parties’ ESI protocol would require the parties to meet and confer to resolve any disputes regarding validation, “including a reasonable discussion regarding the tool employed and the parameters used to obtain or calculate the level of recall.”
In this workplace disability discrimination case, Plaintiff alleged that he began using CBD oils and gummies to treat pain after undergoing multiple medical procedures to alleviate a chronic spine condition. Id. at *1. Plaintiff further alleged that UPMC Pinnacle Hospitals (UPMC) knew about Plaintiff’s use of CBD products, which were legal and could occasionally yield positive drug test results, but nonetheless accused Plaintiff of being impaired and suspended his employment. Plaintiff claimed that UPMC also denied him the opportunity to participate in its Last Chance Agreement program, which was “routinely” offered to first-time minor drug and/or alcohol offenders, and then terminated Plaintiff’s employment.
Plaintiff alleged that the work-related justification for his termination was pretextual and that UPMC’s decision to terminate him was based on his medical condition in violation of the interference and retaliation provisions of the Americans with Disabilities Act and other workplace disability discrimination statutes.
During discovery, several disputes arose including with respect to a forensic examination of a cell phone and the scope of UPMC’s ESI searches.
With respect to the first issue, Plaintiff sought an order compelling a nonparty coworker, Robin Wible, to turn her personal cell phone over to UPMC so that UPMC could conduct a forensic examination of the phone for derogatory information relating to Plaintiff. Id. at *2. Plaintiff claimed that Wible initiated the report of his alleged drug use and that she “occasionally used her personal cell phone for business purposes.”
Magistrate Judge Carlson concluded that “considerations of privacy and practicality, along with relevance and proportionality, all caution against ordering a forensic review of this non-party’s personal cell phone.” Id. at *6. He recognized that “there is a uniquely intrusive aspect” to a “forensic review of the electronic media of a non-party,” which could include “the most intimate of personal details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.” Based on these concerns, Magistrate Judge Carlson explained that courts have recognized a need to “guard against undue intrusiveness” and to be “cautious in requiring” the forensic inspection of electronic devices in order to protect privacy interests, and “[m]ere suspicion” or speculation that a party may be withholding discoverable information is insufficient to support an “intrusive examination” of the party’s electronic devices or information systems. Id. (quoting Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754, at *4 (N.D. Ill. Dec. 15, 2016)).
Magistrate Judge Carlson concluded that caution was particularly important in this case because Wible’s phone was not backed up and relevant information was unlikely to exist on the phone, because there was no indication that Wible played any policy-making or decision-making role in Plaintiff’s termination, and because a forensic review of Wible’s personal cell phone would be both disproportionate and particularly invasive of her personal privacy. Id. at *7.
Magistrate Judge Carlson next turned to Plaintiff’s complaint that UPMC’s search terms for its ESI were too narrow, in particular because UPMC failed to include relevant terms such as “CBD,” “THC,” and “marijuana.” In response, UPMC argued that these terms were, in fact, used in the ESI search it conducted, and that search yielded more than 2,000 potentially relevant documents containing some 368,000 pages of material.
Magistrate Judge Carlson explained that “ESI searches are best performed in a collaborative fashion,” invoking The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J.1 (2018). In particular, he explained that the Sedona Principles identify “two specific, collaborative strategies” designed to “enhance the fairness and transparency of voluminous ESI discovery review,” which include the use of relevant search terms and ongoing sampling of data to assess the accuracy of search terms.
Magistrate Judge Carlson noted that the “collaborative efforts between the parties may have fallen short of the ideals expressed in the Sedona Principles” but concluded that UMPC’s search was adequate. Id. at *8. He explained that the lawsuit involved a “fairly straightforward and discrete series of allegations,” and that UPMC insisted it searched its ESI using the terms Plaintiff complained about. He found that absent a showing of deficiency in UPMC’s ESI search protocol, UPMC had “adequately captured potentially relevant electronically stored data.”
Accordingly, Magistrate Judge Carlson also denied Plaintiff’s request to expand UPMC’s ESI searches.
This litigation involved allegations that Defendant, The Associated Press, aided the October 7, 2023, attack on Israel by publishing pictures taken by freelancers affiliated with Hamas.
Earlier in discovery, the court had ordered Defendant to “provide Plaintiffs with a list of custodians which it searched in pursuit of the discovery materials sought by Plaintiffs” and provided the parties with a procedure to address any additional custodians requested by Plaintiffs. Id. at *1. After following the procedure, the parties disputed whether Defendant’s president and CEO, Daisy Veerasingham, should be added as a custodian.
In support of its motion to compel, Plaintiffs argued that Veerasingham had responsive documents because she appeared 21 times in Defendant’s privilege log and Defendant produced documents showing that Veerasingham was involved in issues relevant to the litigation. These included (1) a document discussing Veerasingham’s son doing work to vet a freelance photographer and alleged Hamas operative/sympathizer; (2) an update Veerasingham provided to Defendant’s board of directors in which she informed the board that she responded to a letter from U.S. Sen. Tom Cotton, Republican of Arkansas, inquiring into allegations that freelance photographers who contributed to Defendant’s coverage of the October 7 attack were colluding with Hamas; (3) an email chain in which Veerasingham discussed the statement Defendant would use in response to inquiries concerning Defendant’s association with freelance photographers in Gaza; and (4) an email chain in which an employee of Defendant’s reported to Veerasingham about the reputational risk Defendant carried due to its association with certain freelance photographers. Id. at *2.
Defendant argued that Veerasingham “had no direct involvement in any of the issues relevant to this case, and there is no relevant information to be gleaned from her documents beyond what is already available from the existing custodians.” In particular, Defendant argued that “as the President and CEO of an organization as large as Defendant’s, [Veerasingham] would not have been involved in either the sourcing or the decision to purchase the photographs taken by the freelance photographers.” Defendant countered Plaintiffs’ arguments based on specific documents by suggesting that Veerasingham merely “needed to become aware of the current state of Defendant’s relationship with the freelance photographers” named in the Plaintiffs’ complaint to respond and protect Defendant’s reputation. For these reasons, Defendant claimed that adding Veerasingham would be “overly burdensome and not proportional to the needs of Plaintiffs in the case.”
Magistrate Judge Elfenbein began her analysis with a description of Federal Rule of Civil Procedure 26(b), which permits a party to obtain discovery of “any matter, not privileged, that is relevant to the claim or defense of any party.” Id. at *3 (quoting Rule 26(b)). She noted that while Rule 26(b) is construed broadly, “it is not without limits” because discovery must also be “proportional to the needs of the case.” She explained that the parties’ claims and defenses determine the scope of permissible, relevant discovery and the party resisting discovery bears the burden of demonstrating specifically how the request is unreasonable or not relevant. If the party is able to do so, the proponent of the motion to compel must then prove the relevance of the requested discovery.
Magistrate Judge Elfenbein first addressed whether Plaintiffs had established that Defendant’s custodian list was inadequate. She explained that Defendant had initially designated 20 custodians, and Plaintiffs had identified three additional individuals based on a review of Defendant’s privilege log. But she found that Plaintiffs offered no other evidence to suggest that the method Defendant used to designate custodians was inadequate in any way and therefore concluded that Plaintiffs had failed “to show the inadequacy of Defendant’s designation process.” Id. at *4 (citing The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J.1, 17 (2018)).
Next, Magistrate Judge Elfenbein considered whether Plaintiffs had established that a search of Veerasingham’s documents “would provide unique relevant information not already obtained.” This inquiry focused on the documents identified by Plaintiffs, but Magistrate Judge Elfenbein concluded that they “fail[ed] to establish that [Veerasingham] has unique discovery material, a finding which weighs heavily against designating her as a custodian.” In particular, Magistrate Judge Elfenbein explained that while the documents reflected that Veerasingham was updated on relevant topics and approved certain relevant decisions, she “was not involved in the micro-level decision-making” and therefore none of the documents demonstrated that she possessed responsive documents “that would not be otherwise produced during Defendant’s search” of other designated custodians. Id. at *5.
Finally, Magistrate Judge Elfenbein concluded that a search of Veerasingham’s documents would not be proportional to the needs of the case. She pointed out that Veerasingham, as CEO of “a non-profit organization with over one thousand employees and a global footprint,” would possess “countless documents concerning Defendant’s global operations unrelated to the instant action.” Because Plaintiff had not demonstrated that Veerasingham was in possession of unique discovery documents, she would not “force Defendant to search through the countless documents in her possession.”
Accordingly, Magistrate Judge Elfenbein denied Plaintiff’s motion to add Veerasingham as a custodian.
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