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 Southern District of New York denying a motion to compel the production of a hard drive and all of its contents because the motion was premature and overbroad prior to the completion of document production
- an opinion from the U.S. District Court for the District of New Jersey overruling a defendant’s confidentiality designations for certain documents produced in discovery because the defendant did not satisfy its burden to show that the documents contained information that was proprietary, contained trade secrets, and/or was highly confidential, and applying the ruling to thousands of other documents produced by the defendant that had also been designated as confidential
- an order from the U.S. District Court for the Southern District of New York granting sanctions against certain defendants under Rule 37(e) for failing to implement litigation holds that led to the deletion of a key custodian’s email files
- a ruling from the U.S. District Court for the Southern District of California denying a plaintiff’s request to mandate that the defendants respond to discovery requests using specific search terms and custodians identified by the plaintiff
1. A decision from the Southern District of New York denying a motion to compel the production of a hard drive and all of its contents because the motion was premature and overbroad prior to the completion of document production.
In Aviles v. S&P Global, Inc., 2021 WL 2077932 (S.D.N.Y. May 24, 2021), U.S. Magistrate Judge Katharine H. Parker ruled that a motion to compel was premature and overbroad where it sought the production of an entire computer hard drive prior to the completion of document production.
Investors in certain funds sued the funds and several associated entities and individuals alleging that Defendants induced Plaintiffs to invest in the funds while secretly funneling Plaintiffs’ investments into other enterprises. Id. at *1. During discovery, a dispute arose over the discoverability of a computer hard drive that held electronically stored information (ESI) for the funds, as well as associated entities and individuals (referred to by the court as the Server). In particular, Plaintiffs requested that the Server be turned over to them in its entirety.
Roy G. Smith, a co-defendant named in the lawsuit, was the previous owner of the manager of the funds and the individual most knowledgeable about the Server. Id. at *2. Smith had recently died, and, despite an investigation undertaken by Smith’s estate (the Estate), it had not been able to fully determine which individuals and entities had made use of the Server since its creation. It was clear that the Server had been owned initially and operated by the manager of the funds, but when the funds lost their assets and the manager closed, Smith had instructed an associated company to maintain the Server. This company did not access the data; it only ensured that it was preserved. More recently, this company’s lease at the facility housing the Server expired, and the Estate retained a third-party service provider to store the Server for the duration of the lawsuit. Id. at *1–*2.
Before Smith died, he had also instructed an IT employee from one of his ventures to provide his counsel with a copy of the Server in order to respond to discovery requests. The IT employee had provided counsel with an external hard drive containing a copy of the portion of the Server where information relevant to the lawsuit resided. During discovery, the parties hired a neutral third-party consultant to extract information from the Server to ensure it was properly preserved. The extracted information, which consisted of only a portion of the data that related to Plaintiffs’ investments and insurance policies, was provided to all parties. The Estate was still in the process of reviewing other ESI on the Server for responsive information. After this was completed, the Estate planned to prepare a privilege log to provide to Plaintiffs. Id. at *2. Although the Estate’s review was incomplete, the Estate disclosed that the Server contained information about the funds as well as information about the manager’s employees, other of the Smith’s business ventures, and Smith’s personal financial information.
Plaintiffs brought a motion to compel the Estate to provide them with the Server, or a copy thereof, to allow Plaintiffs to review its contents in their entirety. The Estate opposed, arguing that the Server contained “substantial irrelevant, personal, and confidential material” and that Plaintiffs’ request was contrary to the Federal Rules of Civil Procedure. Plaintiffs contended that the Estate had no ownership interest in the Server and thus lacked standing to object. Id. at *2–*3.
Magistrate Judge Parker summarized the relevant standards under Federal Rule of Civil Procedure 34(a), which allows a party to serve on another party requests to produce ESI in the responding party’s “possession, custody, or control” to the extent consistent with Rule 26(b). Id. at *3. Rule 26(b)(1) limits ESI that can be obtained to information that is relevant to the claims and defenses of the case and that is proportional to the needs of the case.
Magistrate Judge Parker first addressed whether the Estate had standing to object to the discovery request in light of a dispute as to the ownership of the information on the Server. She noted that Plaintiffs requested information within the Estate’s possession, giving the Estate standing to object. Id. at *4. It was therefore undisputed that the Estate must review and respond to Rule 34 document requests as to this information.
Magistrate Judge Parker also found that Plaintiffs sought information “having nothing to do with the claims and defenses in this matter,” making their request for the Server “clearly overbroad.” She also found the request to be premature, given that the Estate had not completed its review and production of documents on the Server. She noted that Requests to inspect the physical hard drives of another party should be granted only “where the producing party’s discovery responses contain discrepancies or inconsistences.” Id. (internal quotation omitted). “Mere skepticism that an adversary will not produce all relevant information from its electronic files does not warrant Court intervention.” Thus, she found that until the Estate’s production had been completed and was found to be lacking, Plaintiffs could not compel production of the Server.
Magistrate Judge Parker next addressed “Plaintiffs’ concern that the Estate will ‘cherry pick’ ESI for production and withhold crucial documents that support Plaintiffs’ claims,” noting that this is a typical concern for litigants in civil litigation. For this reason, the Federal Rules provide safeguards to ensure that parties acquire the information they need. These safeguards include (1) a duty of attorneys to conduct reasonable searches and certify that disclosures are complete and correct under Rule 26(g); (2) the ability of the court to impose Rule 37 sanctions if parties fail to comply with discovery obligations; and (3) a mechanism for parties to request an inspection of another party’s ESI repositories under Rule 34. Magistrate Judge Parker stated that after the Estate has finished its production, if Plaintiffs uncover inconsistencies or discrepancies, counsel for the parties should meet and confer in an attempt to resolve any issues. Only after such attempts fail may Plaintiffs submit a motion to compel. Therefore, Magistrate Judge Parker denied Plaintiffs’ motion. Id. at *4–*5.
2. An opinion from the District of New Jersey overruling a defendant’s confidentiality designations for certain documents produced in discovery because the defendant did not satisfy its burden to show that the documents contained information that was proprietary, contained trade secrets, and/or was highly confidential, and applying the ruling to thousands of other documents produced by the defendant that had also been designated as confidential.
In In re Valsartan N-Nitrosodimethylamine, Losartan, & Irbesartan Prod. Liab. Litig., No. cv-19-2875 (RBK/JS), 2021 WL 75258, (D.N.J. Jan. 8, 2021), U.S. Magistrate Judge Joel Schneider of the District of New Jersey required Defendant to de-designate documents as not confidential both because Defendant procedurally waived its designations under the terms of the court’s protective order and because Defendant did not satisfy its burden in asserting that the documents were proprietary, contained trade secrets, and/or were highly confidential or that Defendant would suffer particularized serious harms in de-designating the documents.
In this products liability multidistrict litigation, Plaintiffs alleged that Defendants manufactured, distributed, and sold generic medications contaminated with cancer-causing chemicals. Id. at *1. Near the close of discovery, Plaintiffs sought to have five documents produced by one Defendant de-designated and produced as not confidential. Plaintiffs also requested that the court treat the five challenged documents as exemplars and require the Defendant to de-designate tens of thousands of similar documents.
Magistrate Judge Schneider first addressed whether Defendant had waived its claim of confidentiality over the five challenged documents. The protective order entered by the court provided that if the parties disagree following an initial challenge to a confidentiality designation, “the proponent of the designation being challenged shall present the dispute to the Court.” Id. at *2. Despite Plaintiffs informing Defendant that it was required to bring the dispute to the court’s attention, Defendant failed to do so. Id. at *4. Because Defendant failed to comply with the procedure in the protective order, Magistrate Judge Schneider found that Defendant waived its confidentiality designation. Magistrate Judge Schneider, however, declined to find a procedural waiver for any documents beyond the five challenged. Id. at *7. Because the Plaintiff challenged only the five documents, “[i]t would be inequitable to rule that [Defendant] waived its Confidentiality designations as to possibly tens of thousands of documents when only five documents are at issue and [Defendant] was not on notice that plaintiffs would make a waiver request as to all of [Defendant’s] documents.”
Notwithstanding the waiver, Magistrate Judge Schneider addressed the substance of Defendant’s confidentiality designations. He noted that the protective order permits parties to designate as confidential only information that is “proprietary, trade secret and/or highly sensitive commercial information, and which is believed in good faith by the Producing Party to have the potential, if disclosed, for causing competitive harm to it or giving a competitive advantage to others.” Id. at *2. Magistrate Judge Schneider also noted that the designating party has the burden of showing that good cause for the designation exists, specifically that “disclosure will work a clearly defined and serious injury to the party seeking confidentiality." Id. at *3. That showing requires “specific demonstrations of fact supported where possible by affidavits and concrete examples, rather than broad, conclusory allegations of potential harm.”
As an initial point, Magistrate Judge Schneider explained that he did not need to accept the Defendant’s affidavits supporting the designations at “face value.” Id. at *5. Instead, under an independent review, he determined that the confidentiality designations failed for two reasons. Id. at *6. First, “the emails do not contain “proprietary, trade secret and/or highly confidential information.” Second, the emails do not have the potential “for causing [significant] competitive harm to [Defendant] or giving a competitive advantage to others.” Defendant argued that the “confidential” nature of the documents was enough to support its designations, but Magistrate Judge Schneider indicated that bare assertions that information is proprietary and/or highly confidential are insufficient to support confidentiality designations. Simply because a document is nonpublic does not mean it is proprietary, especially for routine business communications.
Magistrate Judge Schneider found that the subject documents involved “what appears to be routine business communications” and that they did not appear to reflect any proprietary procedure or practice. Defendant’s affidavits did not, for example, allege that Defendant “did anything different than any other similarly situated company,” nor did Defendant allege that the emails reflected any “proprietary or secret” approach to its business. Further, “nothing in the emails reflect a particular concern or worry by the authors of the emails that the distribution of the emails should be limited.” Additionally, “none of the emails list or reference proprietary formulas or ingredients other than general references that are likely accessible in documents prepared by or filed with the [Food and Drug Administration].” Finally, “none of the emails discuss or reference [Defendant’s] business plans, revenues, or profits.”
Mere allusion to harm is also insufficient to support a confidentiality designation. Id. at *7. Rather, the designating party must show “that a particularized serious harm would or could result from the de-designation of its documents.” Defendant failed to explain how the release of the documents would cause harm, and Magistrate Judge Schneider concluded that Defendant would not be harmed by the release of “routine business communications.” Separately, in response to Defendant’s alternative argument that Plaintiffs had not shown any need for the documents at issue, Magistrate Judge Schneider noted that “plaintiffs’ need for de-designation or prejudice resulting from a Confidentiality designation is not a relevant factor to consider.”
Unlike with the procedural default, Magistrate Judge Schneider did not limit the scope of his substantive review findings to the five documents. Instead, he directed Defendant to “apply the ruling to all of its document designations [and] remove its designations that are inconsistent with the Court's ruling.”
3. An order from the Southern District of New York granting sanctions against certain defendants under Rule 37(e) for failing to implement litigation holds that led to the deletion of a key custodian’s email files.
In Charlestown Capital Advisors LLC v. Acero Junction Inc., 337 F.R.D. 47 (S.D.N.Y. 2020), U.S. Magistrate Judge Barbara Moses granted sanctions against certain Defendants under Rule 37(e) for failing to implement litigation holds that led to the deletion of a key custodian’s email files.
The Plaintiff, a private equity firm, allegedly entered into an agreement with Defendants (the Agreement), which was signed by the co-president of two of the Defendants (the Acero Defendants) and purportedly entitled Plaintiff to “a fee upon the consummation of an M&A Transaction.” Id. at 53. The day after the Agreement was allegedly signed, one of Plaintiff’s employees emailed a fully executed copy of the Agreement signed by both sides to the co-president. Weeks later, the Acero Defendants entered into a stock purchase agreement with a third party, and Plaintiff claimed that it was owed a fee. In response, Defendants claimed that Plaintiff induced the co-president’s signature on the Agreement through misrepresentation and forgery and that Plaintiff “knew or should have known” that the co-president was not authorized to bind the Acero Defendants. Id. at 54. This lawsuit followed.
Defendants’ counsel prepared a litigation hold memorandum directed to the Acero Defendants’ co-president, “and all employees under [his] supervision,” and instructed them to refrain from activities that could lead to the deletion of ESI that might be relevant to the lawsuit. However, the Acero Defendants’ co-president never forwarded the document to any of his colleagues. In fact, counsel exclusively communicated with the co-president regarding the discovery process and not any other employee. Id. at 56. In discovery, Plaintiff sought the co-president’s emails regarding the Agreement, the M&A transaction, and Defendants’ affirmative defenses. Id. at 55. In response, the Acero Defendants produced approximately 1,400 pages of documents, which included only “six emails to, from, copying ... [the co-president].” After Defendants missed several court-imposed discovery deadlines, Defendants’ counsel moved to withdraw due to a conflict of interests. Id. at 55. Following a conference on the withdrawal motion, the court stayed the case pending resolution of the motion. Around this time, the co-president stopped working for the Acero Defendants. Id. at 56.
Nevertheless, the (now former) co-president’s emails were still searchable, so counsel asked an employee to search the account using keywords. That employee segregated the emails he found with the keywords into a PST file. Counsel did not do anything else regarding those segregated emails for about two months — until the stay was lifted. When counsel asked the employee to share the segregated files, the employee discovered that the Google server on which the PST file was stored automatically deleted documents after 15 days. The employee attempted to segregate the emails from the source again, but a human resources employee had deleted the former co-president’s account as part of a regular process of deleting former employees’ accounts. To approximate a search of the email account, counsel asked the employee to search all other company accounts for emails from and to the former co-president.
The former co-president later testified during his deposition that he regularly downloaded emails from his account to his computer. Id. at 57-58. Upon learning this, Defendants’ counsel and its e-discovery vendor collected approximately 50,000 emails from the co-president’s computer. Id. at 58. After a privilege review and a “de-duplication procedure,” which was designed to eliminate emails previously produced in the litigation and duplication from within the 50,000 emails themselves, the Acero Defendants produced approximately 13,700 pages (or 2,806 emails). Plaintiff took exception to this production, claiming that most of the emails were from the former co-president’s personal email account and only 24 of the produced emails were from his work account and involved individuals who worked for Plaintiff. Among the emails missing from the Acero Defendants’ production was the email attaching an executed copy of the Agreement — an email Plaintiff had previously produced in discovery. In response, Plaintiff filed a motion seeking spoliation sanctions pursuant to Federal Rule of Civil Procedure 37(e).
Magistrate Judge Moses began her analysis with a summary of Rule 37(e), which governs “sanctions for failure to preserve ESI.” Id. at 59. That Rule contains a three-part test to determine whether a party’s failure to preserve ESI warrants sanctions. First, courts must determine if the party “failed to take ‘reasonable steps’ to preserve [ESI] ‘that should have been preserved in the anticipation or conduct of litigation. Id. (quoting Fed. R. Civ. P. 37(e)). Second, courts must determine if the loss of the information prejudiced the other party; if so, courts “may order measures no greater than necessary to cure the prejudice.” Id. (quoting Fed. R. Civ. P. 37(e)(1)). These sanctions may involve imposing attorney fees or more serious sanctions such as precluding the sanctioned party “from putting on certain evidence.” Id. (quoting Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment). Third, courts must consider whether the more severe sanctions in subsection (e)(2) are applicable by determining “whether the destroying party ‘acted with the intent to deprive another party of the information’s use in the litigation.” Id. (quoting Fed. R. Civ. P. 37(e)(2)). If intent is present, the court may impose the sanctions listed in subsection (e)(2), which can include entry of default judgment, regardless of whether the loss of the information prejudiced the other party.
As a threshold matter, as in all spoliation disputes, Magistrate Judge Moses analyzed whether the Acero Defendants had a duty to preserve the ESI. Id. at 60. “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to the litigation or when a party should have known that the evidence may be relevant to future litigation.” Id. at 61 (quoting Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2nd Cir. 2001)). Here, the Acero Defendants’ former co-president’s signature appeared on the Agreement, but the Acero Defendants denied that he ever signed it. Under those circumstances, “it would have been obvious to any competent attorney ... that [the former co-president] would be a crucial witness for the Acero Defendants, that his credibility would be hotly contested and that his email account would be highly relevant to his narrative and his credibility.” Additionally, “by the time the destruction occurred, which was a full year into the litigation, the Acero Defendants had specifically identified [the former co-president’s] [a]ccount (which at that point had never been properly searched) as ESI that required preservation, and had made some (ineffective) attempts to preserve it.” Accordingly, Magistrate Judge Moses found it was “undeniable” that the Acero Defendants had a duty to preserve the former co-president’s emails at the time of deletion.
Magistrate Judge Moses then considered whether the Acero Defendants failed to take reasonable steps to preserve the ESI. In general, this inquiry is “roughly a negligence standard.” Id. (quoting Leidig v. Buzzfeed, Inc., 2017 WL 6512353, at *10 (S.D.N.Y Dec. 19, 2017). And “once the duty to preserve attaches, any destruction of documents is, at minimum, negligence.” Id. (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003)). Moreover, taking reasonable steps requires parties to “suspend [their] routine document retention/destruction policy and put in place a litigation hold,” a process that counsel is obligated to oversee. Id. (quoting Lokai Holdings v. Twin Tiger USA LLC, 2018 WL 1512055, at *11 (S.D.N.Y. Mar. 12, 2018)).
Here, Magistrate Judge Moses concluded that the Acero Defendants did not take reasonable steps to preserve the ESI. Id. at 61-62. While the Acero Defendants’ counsel sent two litigation hold memos in June 2018 and September 2018, neither of those memos was distributed to anyone other than the Acero Defendants’ former co-president. Id. at 62. The Acero Defendants did not distribute the hold memos or any other hold instructions to “human resources staff, IT staff, or any other employees with day-to-day responsibilities for maintaining the relevant records.” In Magistrate Judge Moses’ view, the failure to disseminate the holds and change normal data retention procedures likely led to the deletion of the email account. She also faulted the attorneys for failing to discuss document production with anyone at the Acero Defendants’ plants (other than the former co-president) and otherwise failing to oversee document retention.
Next, Magistrate Judge Moses considered whether the lost ESI was replaceable, because Rule 37(e) permits sanctions only when the lost information cannot be “restored or replaced through additional discovery.” Id. at 62-63 (quoting Fed. R. Civ. P. 37(e)). The Acero Defendants contended they restored the information when they produced emails that their former co-president downloaded to his computer. Magistrate Judge Moses disagreed, noting that the former co-president “provided no details as to how he downloaded his emails to his laptop, when (and how frequently) he did so, or what (if any) deletions took place before or after the download.” Id. at 63. Further, she noted that there was substantial evidence before her that the Acero Defendants’ production was incomplete. In addition to issues associated with volume, among the items missing from the production were hundreds of emails between the parties that were produced by Plaintiff but were removed from the Acero Defendants’ production set through a “de-duplication” procedure. Id. at 64. Thus, Magistrate Judge Moses observed that “there can be no assurances the recovered emails constitute all of the meaningful emails that could and should have been obtained in the first instance ....” Id. at 64 (quoting Coan v. Dunne, 602 B.R. 429, 440 (D. Conn. 2019)) (internal quotations omitted). Magistrate Judge Moses admonished the Acero Defendants’ use of “horizontal deduplication,” which is the process of de-duplicating their production against “prior productions by all parties,” not just against their documents, because the emails’ metadata information, such as when (and whether) a custodian opened an email, was important to this case. Id. at 64 n.18. Accordingly, Magistrate Judge Moses concluded that the Acero Defendants had failed to show their production adequately replaced the contents of the deleted email account. Id. at 65.
Magistrate Judge Moses then considered whether the Acero Defendants’ failure to preserve the ESI prejudiced Plaintiff. Because the concept of prejudice is not well defined in the rule itself, Magistrate Judge Moses relied on the advisory committee notes, which state, in relevant part, that “an evaluation of prejudice from the loss of information necessarily includes an evaluation of the information’s importance in litigation” and that Rule 37(e) “leaves judges with the discretion to determine how best to assess prejudice in particular cases.” Id. (quoting Fed. R. Civ. P. 37(e) advisory committee’s notes to 2015 amendment)). “[Plaintiff] need not, of course, establish that a smoking gun email ... was irretrievably destroyed ... [i]t is sufficient that [Plaintiff] has provided evidence that plausibly suggests that the spoliated ESI could support its case.” Id. at 66 (quoting Karsch v. Blink Health Ltd., 2019 WL 2708125, at *21 (S.D.N.Y. June 20, 2019) (internal quotations omitted).
Applying the prejudice standard to the facts, Magistrate Judge Moses determined that Plaintiff’s inability to access the lost ESI “handicapped ... its ability to assess and test [the former co-president’s] credibility ... particularly in relation to the affirmative defenses that challenge the validity of [his] signature on the Agreement.” Id. at 65. The deleted metadata from the former co-president’s email account, such as when he opened and replied to emails, was especially important to evaluating the merits of the claims and affirmative defenses, according to Magistrate Judge Moses. Id. at 66. Indeed, the information from the email account “would, in all likelihood either corroborate or contradict his testimony” and thus “could have resolved. ... significant factual disputes between the parties.” Id. at 65. (quoting Karsch, 2019 WL 2708125, at *21). Accordingly, Magistrate Judge Moses concluded that the spoliated ESI was useful to Plaintiff and that its destruction prejudiced Plaintiff. The fact that Plaintiff produced some of former co-president’s emails did not change this result because the metadata associated with the account had “independent evidentiary significance.” Id. at 66.
Finally, Magistrate Judge Moses analyzed whether the Acero Defendants acted with intent in order to determine whether Subsection (e)(2) sanctions were warranted. The standard for sanctions under Rule 37(e)(2) “is not merely the intent to perform an act that destroys ESI but rather the intent to actually deprive another party of evidence.” Id. (quoting Leidig, 2017 WL 6512353, at *11). Because the sanctions detailed in Subsection (e)(2) are particularly harsh, courts apply the clear and convincing evidence standard. Id. at 67. (quoting Lokai Holdings, 2018 WL 1512055, at *8). In making this determination, Magistrate Judge Moses considered four inquiries: whether “(1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.” Id. (quoting Moody v. CSX Transp., Inc., 271 F. Supp. 3d 410, 431 (W.D.N.Y. 2017)).
Magistrate Judge Moses ultimately concluded that the first three elements were undoubtedly established but the fourth was not. The affirmative action in question was the human resource employee’s deletion of the email account as part of routine data maintenance. Magistrate Judge Moses attributed this action to management’s gross negligence rather than any bad faith. Although, according to Magistrate Judge Moses, the Acero Defendants “exhibited ... protracted disregard for their obligation to preserve, search, and produce relevant evidence,” she was not convinced their actions were done “for the specific purpose of gaining an advantage in litigation.” Id. at 67 (quoting Karsch, 2019 WL 2708125, at *22).
Finally, Magistrate Judge Moses turned to the question of remedy. In addition to imposing attorney fees stemming from the spoliation, she imposed a harsher sanction to “cure the prejudice.” Id. at 68 (quoting Fed. R. Civ. P. 37(e)(1)). First, the Acero Defendants were estopped “from arguing or presenting evidence to show [that their former co-president] did not receive ... emails that have been produced in discovery.” Second, if the case were to proceed before a jury, Plaintiff would be permitted to present evidence regarding the lost emails, which the jury could use in making factual determinations. Without the requisite intent showing, however, Magistrate Judge Moses refused to issue harsher sanctions requested by Plaintiff, such as entry of default judgment.
4. A ruling from the Southern District of California denying a plaintiff’s request to mandate that the defendants respond to discovery requests using specific search terms and custodians identified by the plaintiff.
In Hastings v. Ford Motor Company, 19-cv-2217-BAS-MDD, 2021 WL 1238870 (S.D. Cal. Apr. 2, 2021), U.S. Magistrate Judge Mitchell D. Dembin denied the Plaintiff’s request to mandate that the Defendants respond to discovery requests using specific search terms and custodians identified by the Plaintiff.
This case stemmed from the purchase of an allegedly defective truck. Id. at *1. Plaintiff filed a motion to compel Defendant to produce additional records in discovery, including a request that the court direct the manner in which Defendants responded to discovery requests by mandating which search terms, custodians, and databases were to be used in Defendants’ response.
Magistrate Judge Dembin began his analysis with Federal Rule of Civil Procedure 34, which requires (1) a request for “information” and (2) a production or objection to that request. Id. (quoting Rule 34(a)(1), (b)(2)(B)). He noted that Rule 34 does not differentiate between requests for information that exists physically versus digitally and that nothing in the rule “requires a requesting party to identify custodians or search terms or for a producing party to accede to demands that particular custodians’ files be searched or that particular search terms be used.”
Magistrate Judge Dembin next explained that he subscribed to the view expressed in Principle No. 6 of the Sedona Principles, that responding parties are best “best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Id. at *3 (quoting The Sedona Principles, Third Ed. 19 SEDONA CONF. J. 1, Principle 6, 118 (2018)). Magistrate Judge Dembin further noted that the world of e-discovery has “moved well beyond search terms” due to technological advancements and new software tools and that using them is disfavored in some courts.
Magistrate Judge Dembin ruled that he would not decide “whether any proposed custodians are appropriate nor on the use of the requested search terms.” Id. at *3. He reiterated the standard by which discovery is to be conducted: “A party requests information and the burden is on the producing party to locate and produce it or object legitimately to production.” If a responding party fails to preserve or disclose material information due to “an unreasonable choice,” those actions may be sanctionable. He further noted that parties should cooperate and be as transparent as possible in discovery. Magistrate Judge Dembin ultimately denied Plaintiff’s motion: “To the extent Plaintiff is seeking to compel Defendants to conduct discovery as directed by Plaintiff, the Court declines to issue such an order.”
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