This Sidley Update addresses the following recent developments and court decisions involving eDiscovery issues:
- a decision from the U.S. District Court for the Western District of New York overruling Defendants’ objections to the entry of an order governing the production of electronically stored information (ESI) based on the burden of compliance
- an order from the U.S. District Court for the District of South Dakota granting a motion to compel the Defendant to supplement its production under Federal Rule of Civil Procedure 26(e) by searching the files of two additional custodians
- a ruling from the U.S. District Court for the District of Oregon declining to impose spoliation sanctions where a Defendant’s cellphone carrier had disposed of records related to that Defendant’s cellphone usage
- an opinion from the U.S. District Court for the District of Maryland recommending denial of a motion for spoliation sanctions where there was no evidence of lost ESI after a company-issued cellphone was reissued to another employee
The parties in this civil rights action disagreed over the entry of a protocol and order governing the scope of ESI discovery. Id. at *1. The parties had attempted to negotiate a protocol, and Plaintiffs had filed an earlier motion to compel entry of their preferred protocol when the negotiations were unsuccessful. In response to that motion, Magistrate Judge Mark W. Pedersen had ordered the parties to submit competing proposals, and he later issued an ESI order consistent with Plaintiffs’ proposal.
Defendants objected to Magistrate Judge Pedersen’s entry of the ESI order, arguing that it suffered from several errors. Defendants raised five separate objections to the order, which Judge Geraci addressed in turn.
Defendants first objected to the ESI order on the grounds that it violated Local Rule of Civil Procedure 26(e)(4), which provides that “[e]xcept as otherwise provided, metadata, especially substantive metadata, need not be routinely produced, except upon agreement of the requesting and producing litigants, or upon a showing of good cause in a motion filed by the requesting party.” Id. at *3.
Judge Geraci found that Plaintiffs had shown good cause to require production of metadata because in this case alleging excessive use of force against Plaintiffs the metadata for “use of force reports” or “internal investigation files” would show “whether changes were made to the reports, which supervisors reviewed and approved the changes, and whether the reports accurately described the incidents captured” by body cameras. Magistrate Judge Pedersen had found that Plaintiffs had demonstrated good cause to require the production of metadata, and the ESI order reflected that finding. Judge Geraci declined to overrule that order, finding that Plaintiffs had “explained that the information they seek cannot be obtained from sources like the text of the requested documents because they seek to verify that the text of the documents accurately reflects what happened and accurately conveys if there were any revisions.”
Judge Geraci also overruled Defendants’ objection that the ESI order inappropriately required them to produce ESI and metadata without requiring limitation by search terms. Defendants argued that Plaintiffs could not demonstrate a particularized need to require “universal production of metadata.” But Judge Geraci found that there was no requirement for Plaintiffs to show a particularized need to receive metadata, and, in any event, he found that Plaintiffs had adequately explained they needed metadata “to accurately reconstruct the excessive force events and any follow-up investigation or disciplinary process relating to those events.”
Judge Geraci also rejected Defendants’ argument that the ESI order did not consider the burden on Defendants of compliance. Id. at *5. Judge Geraci noted that Defendants had raised the same arguments before Magistrate Judge Pederson but proffered no evidence that Magistrate Judge Pedersen had “failed to consider” them. Judge Geraci also noted that the ESI order provided that “[i]f the forms of production allowed by this Protocol present an undue burden or cost for a Producing Entity, the Parties shall meet and confer to try to agree on a reasonable, alternative form of production.”
Second, Judge Geraci rejected Defendants’ objection that Magistrate Judge Pedersen’s ESI order failed to consider “the extraordinary cost of compliance” in violation of Local Rule 26(e)(6). Id. at *5-6. Defendants acknowledged that Local Rule 26(e)(6) provides that “upon a showing of good cause, or unequal burdens” a court may apportion costs of discovery but argued that they had not agreed to do so and that the order “deprived [Defendants] of the opportunity to seek redistribution of the substantial costs which the protocol ordered and necessarily foists upon” Defendants. But Judge Geraci found that the order “allow[ed] Plaintiffs to seek apportionment” of costs only if they could demonstrate that certain productions would be unduly burdensome. Judge Geraci further concluded that there was no evidence that Magistrate Judge Pederson had failed to address Defendants’ burden arguments or that the ESI order contravened the Local Rules, which expressly allow a court to apportion the costs in such a manner.
Third, Judge Geraci rejected Defendants’ objection that Magistrate Judge Pedersen’s ESI order failed to consider Defendants’ technical inability to comply with the order. Specifically, Defendants claimed that they did not have the technical ability to Bates stamp or redact items produced in native format. But Judge Geraci found that the ESI order did not require Bates stamping of native files and allowed that the parties could discuss producing redactions in PDF format.
Fourth, Judge Geraci rejected Defendants’ objection that Magistrate Judge Pedersen’s ESI order unlawfully required production compliant with Plaintiffs’ ESI program, Relativity. Judge Geraci explained that the ESI order mentions Relativity only once, where it requires the parties to “provide a standardized load file compatible with Relativity” for hardcopy documents. But he noted that the order also provides that “[i]f the forms of production allowed by this Protocol present an undue burden or cost for a Producing Entity, the Parties shall meet and confer to try to agree on a reasonable, alternative form of production.” And Defendants did not cite any rules or case law that prevented Magistrate Judge Pedersen from requiring compatibility with Relativity.
Finally, Judge Geraci rejected Defendants’ objection that Magistrate Judge Pedersen’s ESI order failed to consider the burden to produce files in native format. Id. at *7. Judge Geraci again found no evidence that Magistrate Judge Pedersen “failed to consider” this burden. Judge Geraci concluded that the ESI order did not require global mandatory production in native form but in fact provided that “a Party must demonstrate particularized need for production of ESI in its native format.” He also found that the ESI order’s language in this regard “mirrors the language of Local Rule 26(e)(5) by requiring a particularized showing for native production after initial production.”
Accordingly, Judge Geraci overruled Defendants’ objection to Magistrate Judge Pedersen’s order entering Plaintiff’s ESI protocol.
In this trademark litigation involving the use of the word “Sterling” in connection with its information technology and computer services business, the parties disputed whether their respective custodial ESI productions were comprehensive.
Earlier in discovery, the court had granted a motion filed by Defendant to compel Plaintiff produce “responsive custodial documents” based on a finding that Plaintiff had “not conducted a thorough search for responsive documents in its custodians’ emails.” The court had found that “emails contain information of a more informal nature than what might be found on a marketing drive or in the files of a legal department” and “can offer insight that differs from polished documents.” The court had also found that the files of individuals who “were identified as persons most likely to possess responsive information … are an obvious target for a comprehensive search.” Id. at *2.
Later, Plaintiff made its own claim that Defendant had not performed a comprehensive search of its custodians’ files and filed a motion to compel Defendant to conduct a comprehensive search of the emails of eight custodians for responsive documents. Id. at *1.
After disposing of Defendant’s arguments that Plaintiff’s motion was both untimely and contrary to the law of the case, Magistrate Judge Duffy turned to the merits of Plaintiff’s application under Rule 26. Id. at *4. She explained that Rule 26(e) requires parties to supplement their discovery responses “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” She further explained that Plaintiff must establish that Defendant’s initial disclosures were incomplete or incorrect and that the requested discovery was relevant.
Magistrate Judge Duffy rejected Defendant’s argument that Plaintiff did not request emails. She found that Plaintiff’s requests for production defined “documents” as including “electronic mail or email” and that the requests at issue each used this defined term.
Magistrate Judge Duffy next addressed whether the requested documents were relevant. She explained that “[m]ere speculation that information might be useful will not suffice; litigants seeking to compel discovery must describe with a reasonable degree of specificity, the information they hope to obtain and its importance to their case.” Magistrate Judge Duffy noted that Defendant appeared to concede that the information requested by Plaintiff was relevant with respect to six custodians but disputed the relevance as to two additional custodians. Defendant argued that neither individual was identified as having information relevant to the litigation, although Defendant acknowledged that both “furnished information” that Defendant provided in its interrogatory responses. Moreover, Defendant argued that both individuals “are finance employees not likely to have any responsive emails.”
Magistrate Judge Duffy explained that the “threshold for relevance is quite minimal,” encompassing “any matter that could bear on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” She concluded that Plaintiff had “cleared this low bar for demonstrating that” the emails for the two additional custodians would be relevant. In particular, she concluded that because these two individuals “furnished” information to Defendant for discovery responses, that meant “they have access to relevant information.”
Accordingly, Magistrate Judge Duffy held that the emails for the two additional custodians were relevant and ordered Defendant to supplement its production by conducting a reasonable search of their emails for responsive documents.
This litigation arose from the death of one of Plaintiffs’ family members after the Defendants, a fire district and two paramedics, Cody Engler and Alex Dustin, responded to a 911 call on December 26, 2020. Id. at *1. Plaintiffs requested records from the fire district, a request the fire district acknowledged in a February 1, 2021, letter. But the fire district refused to provide the records, stating in a March 12, 2021, letter that the records were “conditionally exempt from disclosure” under applicable regulations. Plaintiffs responded to this refusal in a May 26, 2021, letter, which also requested the preservation of “instant messages, cell phones, and telephone logs.”
Plaintiffs later filed a lawsuit and requested copies of Defendants’ cellphone billing statements in discovery. In response, Defendants produced screenshots of Engler’s text messages. Defendants also requested relevant records from their carrier, Verizon, and informed Plaintiffs’ counsel that they were requesting the records.
But Verizon informed Defendants that any records “outside of billing records accessible via log-in” to Defendants’ online accounts would require a subpoena. Accordingly, Defendants served Verizon with a subpoena requesting phone records, and Verizon later agreed to provide Defendants with the billing records that were available. The billing records for Engler were produced on September 13, 2023, and the billing records for Dustin were produced on October 10, 2023. Verizon did not produce anything related to text messages or associated details and acknowledged the records were limited to the last 365 days prior to production. Id. at *2.
Plaintiffs moved for entry of sanctions due to spoliation of the evidence against Defendants.
Magistrate Judge Clarke began his analysis with a brief survey of Rule 37(e), which “sets the standards for sanctions arising from the spoliation of ESI.” He explained that “[s]poliation is the destruction or material alteration of evidence, or the failure to otherwise preserve evidence, for another’s use in litigation” once a duty to preserve has been triggered.
Magistrate Judge Clarke further explained that “courts in the Ninth Circuit apply a three-part test” to determine whether there has been spoliation, which requires the moving party to show that (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
Magistrate Judge Clarke next described the finding of the court in a prior similar litigation, First Financial Security, Inc. v. Freedom Equity Group, LLC, No. 15-cv-1893-HRL, 2016 WL 5870218 (N.D. Cal. Oct. 7, 2016), where the court sanctioned the defendants for failing to preserve text messages on their personal phones but did not sanction them for failing to preserve phone records that Verizon destroyed in the ordinary course of business. Magistrate Judge Clarke noted in particular that the defendants in First Financial Security had admitted to deleting texts on their personal phones after the duty to preserve evidence in anticipation of litigation had already arisen, which resulted in the court’s imposing sanctions for spoliating text messages. But the court in First Financial Security had declined to impose sanctions for spoliation of the Verizon phone records because the defendants there did not bear “a significant degree of fault for failing to realize Verizon would destroy the phone records in the ordinary course of business.”
Turning to the merits of Plaintiffs’ spoliation motion, Magistrate Judge Clarke first found that Defendants had not failed in their duty to preserve evidence. Id. at *3. He noted that “[e]videntiary duties generally apply to evidence within a party’s possession, custody, or control,” but the Verizon records at issue were not within Defendants’ possession, custody, or control. He therefore concluded that Defendants did not have a duty to preserve those records as evidence. In this regard, Magistrate Judge Clarke distinguished First Financial Security, where the defendants had admitted to deleting text messages on their personal phones.
Magistrate Judge Clarke next found that Defendants did not possess a culpable state of mind. He explained that while “bad faith is not required for a court to sanction a party for allowing the spoliation of evidence,” a finding of “willful spoliation” requires that a party have “some notice that the evidence was potentially relevant to the litigation before it was destroyed.” But Magistrate Judge Clarke concluded that Defendants did not possess a culpable state of mind with respect to Verizon’s deletion of Defendants’ phone histories because the deletion was a part of Verizon’s normal business protocol and Defendants had timely sought those records through subpoena once Plaintiffs requested them.
Finally, Magistrate Judge Clarke found that Plaintiffs had not established the relevance of the alleged missing evidence from Verizon. Id. at *4. He explained that Plaintiffs must show that the “destroyed evidence would have been useful for a reasonable trier of fact to decide the underlying claim” and that Defendants’ actions “impaired [Plaintiffs’] ability to go to trial or threatened to interfere with the rightful decision of the case.” Magistrate Judge Clarke concluded that while the Verizon records were inaccessible, Plaintiffs had not established that they were relevant to the case. Nor had Plaintiffs established prejudice because Verizon deletes text message content from its system within five days of the date of transmission or receipt, and it would not be reasonable to have expected Defendants to request that Verizon preserve the records “within five days of any relevant messages being sent or received.”
Because Plaintiffs had failed to establish all three elements of the test to issue sanctions, Magistrate Judge Clarke denied Plaintiffs’ motion for sanctions.
This case involved claims of sexual harassment and discrimination by Plaintiff against her former employer and her supervisor, Tavon Roberts. Id. at *1. Plaintiff claimed that she provided another of Defendant’s employees, Maj. Roy Engle, with copies of explicit text messages between herself and Roberts shortly after she left Defendant’s employ and that Roberts was fired the next day as a result.
According to Defendant, Roberts surrendered his work phone to Engel when he was fired, and it was reissued to Roberts’ replacement, Capt. Ebony Wiley. Id. at *2. Engel testified that he had the phone two to three days prior to reissuing it to Wiley, and Wiley verified that she received the phone in September 2022. At that time, Roberts’ contacts and text messages were still in the phone and Wiley claimed she did not delete anything from the phone. She returned the phone to Defendant in January 2025, and a forensic examination of the phone found no explicit text messages.
Plaintiff filed a motion seeking sanctions for alleged spoliation of texts on Roberts’ phone, seeking entry of judgment in her favor or, in the alternative, for an adverse inference instruction to the jury at trial based on Defendant’s failure to sequester the phone when Roberts was fired.
Magistrate Judge Coulson began his analysis by noting that Plaintiff erroneously based her spoliation sanctions request on the “the Court’s inherent authority applicable to spoliation generally rather than the Federal Rules of Civil Procedure.” He explained that Rule 37(e) provides the exclusive analytical framework to address alleged spoliation ESI, particularly in cases where a party seeks harsher sanctions such as dismissal or an adverse inference instruction.
Magistrate Judge Coulson next described the requirements for imposing sanctions pursuant to Rule 37(e), under which four initial criteria must be met: (1) The party was under a duty to preserve the ESI at issue; (2) the ESI at issue was not preserved; (3) the loss of the ESI was due to the party's failure to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery. He explained that sanctions may be imposed under Rule 37(e)(1), if the court to make a finding of prejudice before sanctions may be warranted, meaning “the party claiming spoliation cannot present ‘evidence essential to its underlying claim.’” Or sanctions may be imposed under Rule 37(e)(2) if a party acted with the intent to deprive the opposing party of the ESI.
Under this standard, Magistrate Judge Coulson found that Plaintiff had failed to put forth sufficient evidence of the four elements necessary to support a finding of spoliation under Rule 37(e). Id. at *3. Although he was willing to assume for purposes of Plaintiff’s motion that Defendant had a duty to preserve the ESI on Roberts’ phone, Magistrate Judge Coulson concluded that Plaintiff had offered no facts to suggest that the phone was not adequately preserved. In reaching this conclusion, Magistrate Judge Coulson relied in particular on Capt. Wiley’s testimony that when she received the phone, it still had Roberts’ text messages on it, and she did not delete them.
Magistrate Judge Coulson recognized the facts that Defendant’s counsel “did not take possession and control of the phone until December of 2024, well after suit was filed,” and that no explicit texts were found on the phone after a forensic search by an outside expert using terms agreed to by the parties. But he found that these facts were not “evidence of a loss of data” and that there was no evidence that the texts at issue were even on the phone because it was not clear whether Plaintiff texted Roberts on his work or personal phone. Magistrate Judge Coulson also noted that Plaintiff testified that she took “screen shots” of all messages, which suggested that any “missing” texts could be “restored or replaced” by the ones from Plaintiff’s phone.
For these reasons, Magistrate Judge Coulson recommended that Plaintiff’s motion for spoliation sanctions be denied. Id. at *4.
Information on past notable cases and events in e-discovery can be found here.
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