This Sidley Update addresses the following recent developments and court decisions involving eDiscovery issues:
- a decision from the U.S. District Court for the Eastern District of New York compelling the Defendant to collect and produce electronically stored information (ESI) from the personal cell phones and email accounts of its employees
- an order from the U.S. District Court for the Northern District of Illinois declining to order Plaintiff to include a provision permitting email threading in the parties’ ESI protocol
- a ruling from the U.S. District Court for the Southern District of New York faulting the Plaintiff for not producing relevant structured data from one of its dynamic databases
- an opinion from the U.S. District Court for the Eastern District of Louisiana overruling general boilerplate objections in the Defendant’s discovery responses because the objections were not stated with sufficient specificity
Plaintiffs, a small Muslim congregation located in Bethpage, New York, and two of its leaders, were denied approval to build a mosque by the Town of Oyster Bay (Town) and sued for alleged violations of the Religious Land Use and Institutional Persons Act, the First and Fourteenth Amendments to the United States Constitution, and the New York State Constitution. Id. at *1.
In discovery, Plaintiffs requested that the Town produce responsive discovery from the mobile devices of members of the Oyster Bay Planning Advisor Board (PAB) that voted against the Plaintiffs’ application as well as the mobile devices of the Town’s other document custodians. The court had previously denied without prejudice a motion to compel the Town to produce personal texts and email communications of the six PAB members.1 But Plaintiffs renewed the motion based on what they claimed was evidence that the six PAB members used personal mobile devices for Town business.
Magistrate Judge Wicks began his analysis by noting that Rule 26 provides for discovery on “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” He further noted that Rule 34(a)(1) permits requests for “documents and ESI within the party’s possession, custody, or control.” He explained that a party is deemed to “control” documents “that it has the legal right or the practical ability to obtain — even where those documents are in the physical possession of non-parties.” Id. at *2. Once “control” has been established, a requesting party “must provide some justification for its suspicion that relevant messages may be contained on the employees’ personal devices.”
Magistrate Judge Wicks surveyed the evidence proffered by Plaintiffs on their renewed motion and found it compelling. He noted, for example, that one PAB member testified that he “received substantive application materials at his personal email address,” contradicting an earlier declaration that he “received no emails or communications concerning PAB matters, that he does not use personal devices for Town-related matters, and that he did not ever discuss over text message, group chats, or any electronic medium any PAB applications.” The PAB Chairman similarly admitted “to possibly having received emails on his personal email account” but he “did not take any affirmative steps to determine whether additional emails on his personal devices existed.”
Magistrate Judge Wicks concluded that “the discrepancies between the submitted declarations and deposition testimony, compounded with the witnesses’ admitted failure to check their personal email accounts to conclusively deny the existence of PAB application materials, raise the ‘suspicion’ and now justify the sought after discovery.” Id. at *3. He therefore held that Plaintiffs were entitled to ESI production of the personal texts and email accounts of the PAB members.
Magistrate Judge Wicks declined to set specific parameters for the review, noting that “the court is generally not in the business of instructing counsel on how to conduct its discovery review.” He explained that Rule 26(g) requires an attorney to certify that a disclosure is “complete and correct” after a “reasonable inquiry” and that the failure to do so “has its own set of consequences, including mandatory sanctions, which should ordinarily be sufficient to ensure a party’s production is complete.” Accordingly, he ordered the parties to “meet and confer to coordinate a date and time for the production of the personal texts and email communications of the PAB members’ personal devices, subject to supervision by counsel for Defendants” and for Defendants to “submit declarations … detailing the efforts made by the members to produce the requested ESI, whether documents were located, and why documents were not found, located, or produced.” Id. at *4.
Plaintiffs in this action asserted antitrust and Racketeer Influenced and Corrupt Organizations Act claims related to an alleged scheme to limit competition using unlawful kickbacks to pharmacy benefit managers in exchange for placement of its multiple sclerosis medication Tecfidera above generic equivalents on their formularies. Id. at *1. While Defendant’s motion to dismiss the complaint was pending, the parties negotiated the terms of a protocol to govern the production of ESI. They agreed on most of the terms except for one relating to email threading, which Defendant sought to include but Plaintiffs opposed. The parties cross-moved the court to decide the issue.
Magistrate Judge Kim first provided a brief explanation of email threading, noting that it is “the technical process of recombining emails that comprise an email discussion, including replies and forwards.” Id. at *2 (quoting The Sedona Conference, Commentary on Privilege Logs, 25 Sedona Conf. J. 221, 266 (2024)). He further explained that the threading process “identifies inclusive emails, meaning those containing content that is not present in its entirety in any other email in the set of emails being analyzed,” and the “remaining emails are categorized as non-inclusive because their content is included elsewhere in an inclusive thread.” Id. at *2-3.
Magistrate Judge Kim noted that while the content of noninclusive emails is available in the inclusive email, noninclusive emails are often not reviewed or produced, and the metadata attached to each such noninclusive email is therefore also not included in production. Id. at *3. Quoting from the Sedona Conference Commentary on Ethics & Metadata, he stated that “the discovery duties of production for metadata are generally the same as for other ESI, meaning that metadata must be produced when requested and not objected to.” He further noted that email metadata encompasses over 1,200 properties, including when the email was sent, or when a recipient received, viewed, replied, or forwarded the message.
Magistrate Judge Kim began his analysis with a survey of the relevant federal rules, which allow for discovery of “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Id. at *1 (quoting Rule 26(b)(1)). He explained that an assessment of proportionality “requires the consideration of 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.”
Magistrate Judge Kim next noted that discovery requests may call for ESI “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Id. (quoting Rule 34(a)(1)(A)). After quoting extensively from Rule 34(b), Magistrate Judge Kim summarized that the rule “permits ESI to be requested in a designated form of production and limits the option to produce in a reasonably usable form to one that does not make it more difficult or burdensome for the requesting party to use.”
Addressing next the case law governing email threading, Magistrate Judge Kim noted the lack of binding precedent in the Seventh Circuit. He recognized that parties may agree to or opt out of the default discovery rules and that “courts tend to liberally construe the discovery rules in antitrust cases.” But he opined that broad discovery requires caution, referencing the “potential for discovery abuse inherent given the unusually high cost and extensive scope of discovery in antitrust cases.” Accordingly, Magistrate Judge Kim stated that he would consider Plaintiffs’ request to deny email threading “in light of the expansive view of discovery in antitrust cases, and the broad relevance standard generally …, while also allowing only for discovery proportional to the needs of the case.”
Magistrate Judge Kim found that the case law Defendants relied on was mostly inapposite and that Defendants cited only one case from the district where a court entered an ESI protocol permitting email threading over the other party’s objection. Id. at *4. But he noted that while the arguments made by the parties in that case were similar, the court’s order did provide insight as to its reasoning and therefore was “informative but not persuasive.”
Turning to the merits of the parties’ arguments, Magistrate Judge Kim stated that the primary benefit of email threading is that it “reduces the volume of emails the producing party must review as the process involves the de-duplication of non-unique email correspondence.” Id. at *5. Plaintiff argued that email threading would eliminate the metadata for the noninclusive emails, and this would render “available organizational and data visualization tools” useless and require “manual text searches that hinder the overall searchability of the emails produced.” Defendant “offered to write a script that would generate a new field populated with metadata relating to the participants and dates of non-inclusive emails,” but Plaintiff disputed the utility of this approach.
Magistrate Judge Kim agreed with Plaintiffs and found that declining to require email threading was the better approach. He explained that Plaintiffs requested production of the emails “as they are ordinarily maintained,” as set forth in Rule 34, whereas Defendant’s proposal deviated from “the Rule 34 norm” without demonstrating that its proposed alternative would be “reasonably usable” as required by the rule. Magistrate Judge Kim pointed to the fact that Defendants would have to “program an additional field to capture the metadata at issue” as evidence that “withholding non-inclusive emails results in a loss of metadata.” And he noted that Defendant’s offer to provide the metadata Plaintiffs sought in an additional field would “not make it equivalent in terms of searchability and usability.” Magistrate Judge Kim also rejected Defendant’s argument that “text-based searches [of the noninclusive emails] are a routine part of document review,” because “Rule 34(b) does not state that a party can refuse to produce ESI as ordinarily maintained merely because the producing party’s alternative form is also used in discovery.”
Magistrate Judge Kim next turned to Defendant’s argument that producing unthreaded emails would be burdensome, to which he applied the proportionality factors under Rule 26(b)(1). Id. at *6. Here too, he sided with Plaintiffs, finding that Defendant did not substantiate its burden argument by claiming that “threading can materially reduce the number of documents for review resulting in lower document hosting costs and quicker completion.” Magistrate Kim explained that “[n]onspecific or speculative claims are insufficient for the court to weigh Defendant’s burden against the remaining proportionality factors in Rule 26(b)(1).”
Accordingly, Magistrate Judge Kim granted Plaintiffs’ motion to order an ESI protocol without a threading provision and denied Defendant’s cross motion. Id. at *7.
Plaintiff in this action alleged that Defendants misappropriated confidential and trade secret information, diverted corporate opportunities for their own benefit, used Plaintiff’s trademarks and trade dress to market competing products, and stole “hundreds of thousands (if not millions) of dollars from the company to build their business, pay their personal debts and expenses, and compete directly with” Plaintiff. Defendants counterclaimed for the value of certain commissions they claimed to be owed by Plaintiff.
In discovery, deposition testimony from one of Plaintiff’s witnesses, Hershy Green, demonstrated that Plaintiffs had identified a database called the “Data Warehouse” containing information pertinent to their sales and calculation of their commissions. Id. at *1. This database contained information relevant to Defendants’ counterclaims concerning the calculation of their commissions but was not produced to Defendants. Id. at *2. Defendants moved to compel this information through an oral motion at a discovery conference.
Plaintiff argued that it was not required to produce responsive information stored as data in its systems. But Magistrate Judge Parker stated that Rule 34 “has long required responding parties to conduct a reasonable search for documents and information relevant to the claims and defenses.” She explained that the Advisory Committee Notes to Rule 34 from 2006 make clear that “documents” includes ESI, that parties cannot evade discovery obligations on the basis of labels, and that ESI “stands on equal footing with discovery of paper documents” including ESI stored in “dynamic databases” and other systems.
Magistrate Judge Parker identified other sources of authority relevant to the production of data, including her own rules requiring counsel to “be sufficiently knowledgeable in matters relating to their clients’ technological systems to discuss competently issues relating to electronic discovery” and New York Rule of Professional Conduct 1.1 requiring counsel “to stay up-to-date on technology relevant to their practice and requirements of applicable rules of Civil Procedure.”
Given these authorities, Magistrate Judge Parker found that Plaintiff’s counsel’s failure to look for and produce relevant financial data pertaining to the calculation of Defendants’ commissions was “inexcusable” in light of the facts that “relevant information is contained in databases” and “financial information that exists as data in databases is ubiquitous.”
Magistrate Judge Parker next surveyed relevant guidance from the Sedona Conference “on how to preserve and produce databases and database information.” Id. at *4. She explained that “the Sedona Conference and many courts have recognized … that responding parties may need to extract data from databases, even if that requires assistance from systems specialists (and it often does).” She added that “a producing party may need to create a special query to extract only certain relevant data fields from a database” and noted that Plaintiff should have taken this step but did not. Instead, Plaintiff searched for existing reports, but these reports “do not provide a full picture of how [D]efendants’ commissions were computed over time; more was required than simply searching for such reports.”
Magistrate Judge Parker summarized that Plaintiff’s counsel had failed to conduct a reasonable search for relevant repositories of information; to produce relevant data concerning Defendants’ commissions; to comply with Rule 34’s requirements by identifying relevant information that was being withheld on the basis of objections and by failing to produce responsive data; and to comply with Rule 26(g) that requires counsel to sign discovery responses attesting that they are complete and correct as of the time it is made. Id. at *4-5. She also found that Plaintiff’s counsel “misled defense counsel and the Court as to the reasonableness of their search and the existence of information relevant to the computation of [D]efendants’ commissions.”
Accordingly, Magistrate Judge Parker granted Defendants’ oral motion to compel production from the Data Warehouse and ordered Plaintiff to “identify all data elements relevant to computation of [Defendants’] commissions that exists in the data warehouse for the period 2019 to 2024 and produce it within two weeks.” She also ordered discovery sanctions in the form of attorneys’ fees and costs associated with Defendants’ motion to compel, noting that Plaintiff’s belated agreement to produce data “does not avoid this result.”
In this case seeking to recover for property damage caused by Hurricane Ida, Plaintiff filed a motion to compel when Defendant failed to timely respond to Plaintiff’s discovery requests. Id. at *1. Defendant responded to the motion to compel but also produced discovery objections and argued that the motion to compel was moot. Plaintiff disagreed, arguing that Defendant’s objections to the discovery were waived because Defendant’s responses contained improper “general and boilerplate objections.”
Defendant’s discovery responses began with a list of 13 “General Objections” stating, for example, that Defendant “objects to these discovery requests as they are interposed for an improper purpose” and that it objects that the discovery requests seek “information protected under the attorney client privilege, attorney work product doctrine, or as documents prepared in anticipation of litigation.” Id. at *2. Defendant did not identify which particular request (or which part of the response to any particular request) was implicated by which of the 13 objections. Moreover, each of its discovery responses begins with the statement “See General Objections.” Plaintiff asked the court “to deem all non-privilege objections waived and order objection-free supplementation.” Id. at *1.
Magistrate Judge van Meerveld began her analysis with a survey of the relevant rules. She explained that Rule 26(b)(1) provides that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” With respect to proportionality, the same rule requires “consideration of the following factors in assessing proportionality: 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.”
Magistrate Judge van Meerveld added that “[b]lack letter law requires the grounds for objecting to an interrogatory must be stated with specificity.” Id. (quoting Rule 33(b)). She further noted that the rules “require that objections to requests for production of documents be stated with specificity” and “must state whether any responsive materials are being withheld on the basis of that objection.” Id. (quoting Rule 34(b)(2)(B) and (C)).
Magistrate Judge van Meerveld concluded that “[g]eneral, boilerplate, unsupported objections that fail to state their grounds with specificity are improper and result in waiver of those objections.” Id. at *2. She explained that an objection to a discovery request is boilerplate “when it merely states the legal grounds for the objection without: (1) specifying how the discovery request is deficient and (2) specifying how the objecting party would be harmed if it were forced to respond to the request.”
Turning to the merits of Plaintiff’s waiver claim, Magistrate Judge van Meerveld quickly concluded that Defendant’s repeated use of “See General Objections” did not render the objections specific because this “wholly fail[ed] to meet the specificity required by the Rules.” She therefore overruled those general objections.
Magistrate Judge van Meerveld also found that some of Defendant’s specific objections were insufficient. These included statements that requests were “overly broad and unduly burdensome” (without explaining why the request was overbroad or the burden involved) and that responsive documents were being produced “subject to and without waiving said objection.” She concluded that these responses did not “specify if documents are being withheld.”
Ultimately, Magistrate Judge van Meerveld declined to overrule all of Defendant’s nonprivilege objections, opting instead to order Defendant to revise its responses to specify whether any documents were being withheld and, if so, to explain the basis for withholding with specificity.
1 See Muslims on Long Island, Inc. v. Town of Oyster Bay, 25-cv-00428 (SJB) (JMW), 2025 WL 1582250 (E.D.N.Y. June 4, 2025) (reported in Sidley’s June 2025 Notable Cases and Events in eDiscovery).
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