Maine Evidence and Electronic Discovery

Another Rare Appellate Decision Vacating E-Discovery

It's always nice, although rare, to see an appellate court reverse a lower court's decision to permit some form of electronic discovery.  It doesn't happen often at all, and usually when it does it's because the trial court clearly went overboard.  An essential ingredient in getting an appellate court to vacate an electronic discovery order is to show that the producing party has taken reasonable steps to produce likely sources of relevant documents already, and that the requesting party has failed to make a showing that more e-discovery (in the form ordered by the lower court) is likely to lead to relevant documents for which the need is significant enough to overcome the burdens being imposed.

The Texas Supreme Court recently issued such a decision under its state court rules that mirror the federal e-discovery rules.  In In re Weekley Homes, L.P., No. 08-0836 (Tex. Aug. 28, 2009), a mandamus proceeding, the court held that the trial court abused its discretion by ordering four of defendant’s employees to turn over their computer hard drives for a forensic examination.  In that case, the plaintiff served discovery requests that included requests for a variety of emails.  The defendant produced only thirty-one responsive emails, which the plaintiff did not believe was a sufficient or complete production.  The plaintiff filed a motion to compel additional searching, based on its assumption that more emails must have existed.  In response, the defendant asserted to the trial court that its employees’ inboxes were of limited size and were emptied by the users manually deleting messages once the inboxes became full.  The defendant reported that emails were saved only if manually saved by an individual employee to his personal hard drive.  All deleted emails, in contrast, were saved on computer backup tapes for only thirty days.  Based on that evidence, and in the absence of any evidence to the contrary or any indication that emails had been intentionally deleted to thwart discovery, the trial court initially denied plaintiff's motion.

The plaintiff then moved for "limited access” to certain of defendant's employees’ hard drives specifically to search for deleted emails.  The plaintiff proposed a search methodology under which a forensic expert would search for deleted emails on the hard drives, extract any located deleted emails, and provide all of those emails to defendant for its review and production to plaintiff.  not surprisingly, the defendant objected to that proposal, arguing that the proposed method was intrusive, would take the hard drives out of commission when needed by the employees, and that plaintiff had not even made a showing about either the need or the feasibility of obtaining the deleted data.  Nevertheless, the second time around the trial court granted plaintiff's motion.  The defendant initially sought mandamus relief from the court of appeals, which was denied, then seeking mandamus review in the state supreme court.

In analyzing the issue, the state court relied heavily on reported federal caselaw involving e-discovery, as there were few reported state court decisions under the analogous rules.  The court noted that, under the rules, a party ordinarily is only required to produce responsive electronic information that is “reasonably available to the responding party in its ordinary course of business.”  A party may be ordered to produce information that is not reasonably available “upon a showing … that the benefits of ordering the production outweigh the costs.” 

In this instance, the court concluded that the plaintiff had failed to meet its burden of showing that the benefits of the intrusive search it proposed outweighed the costs and burdens involved for the defendant.  As the court observed, the plaintiff's argument boiled down to a complaint that the defendant had only produced "a handful of emails," which the plaintiff assumed must have been incomplete.  The court agreed that the trial court "could have concluded that [plaintiff] made a showing that [defendant] did not search for relevant deleted emails that [plaintiff] requested.  But it does not follow that a search of the Employees’ hard drives would likely reveal deleted emails or, if it would, that they would be reasonably capable of recovery."

The court found that the plaintiff's "conclusory statements that the deleted emails it seeks 'must exist' and that deleted emails are in some cases recoverable is not enough to justify the highly intrusive method of discovery the trial court ordered, which afforded the forensic experts 'complete access to all data stored on [the Employees’] computers.'"

The missing step is a demonstration that the particularities of [defendant's] electronic information storage methodology will allow retrieval of emails that have been deleted or overwritten, and what that retrieval will entail.  A complicating factor is the some two-and-a-half years that passed between the time any responsive emails would have been created and the time [plaintiff] requested them.  Under these circumstances, it is impossible to determine whether the benefit of the forensic examination the trial court ordered outweighs the burden that such an invasive method of discovery imposed.

Therefore the court held that the trial court abused its discretion in ordering the intrusive discovery.

Be Reasonable and Specific in Objecting to ESI Production

Another recent decision highlights the importance of providing specific evidence to the court on the burdens of electronic production, if you hope to have the court cut back on what the other side is requesting.

In Speiker v. Quest Cherokee, LLC, Docket No. 07-1225-EFM (D. Kan. July 21, 2009) (click here), the class action plaintiffs sued the defendant for unpaid royalties related to oil and gas leases.  The plaintiffs filed an initial motion to compel production of ESI, which was denied by the court without prejudice, based on the defendant's estimated compliance costs of between $82,000 and $375,000, with an estimated cost for privilege reviews of $250,000.  See id. at 2-3.  The parties were directed to confer in an attempt to reach an agreeable resolution, but were unable to do so.  The plaintiffs renewed their motion to compel.

The court did not elaborate on the specific nature of the ESI requests, but generally found that the discovery requests (which presumably covered both hard copy documents and ESI) were relevant.  See id.at 4.  In addressing the costs for ESI production, the defendant offered estimates from Kroll Ontrack that it would cost "approximately $82,500 to process the volume of requested email files and an additional $38,000 charge to copy the ESI information in TIFF format."  Id.at 5.  The estimated $250,000 for privilege review was on top of those amounts.  The defendant argued that it could not have in-house IT staff utilize recently installed computer software to run searches on its own, without involving Kroll, because "the new software is untested and in-house IT staff have no internal experience in producing ESI in litigation," and "this process would need to be completed on nights and weekends.”  Id. at 6. 

The court dismissed the defendant's "pessimistic arguments concerning its ability to generate the requested ESI," finding the arguments "not persuasive."  The court specifically found that the "defendant’s assertions that its IT employees have no experience producing discovery in litigation carries no weight. This court is aware of no case where a party has been excused from producing discovery because its employees have not previously been asked to search for and/or produce discovery materials."  Id. 

The court also found that the defendant's $250,000 privilege review estimate was excessive and over-stated.  The court agreed that the defendant could not simply produce all ESI materials without conducting any review, as "turning over the ESI material without taking any steps to preserve privileged materials would not satisfy Rule 502(b)," resulting in potential privilege waiver.  Id. at 7.  But the court noted that the "defendant is the party most familiar with its own records and responsible for preparing search requests that gather information responsive to plaintiffs’ discovery requests," and so was in the best position to suggest a more reasonable approach.  Id. at 7-8.  Because the defendant had not revised its estimate at all since the filing of the original motion to compel, the court found it unpersuasive and rejected it out of hand.  The court therefore granted the motion to compel.

The lessons here are once again that if a party fails to adequately support its cost arguments, or appears to be offering inflated assessments that are not perceived as reflecting reality, the party runs the risk of the court ordering full production instead of a lesser production if the party had appeared more willing to compromise.

Recent Massachusetts Decision on Production of Metadata and Cost Shifting for E-Discovery

Recently a senior district judge in Massachusetts waded into the electronic discovery waters, providing guidance in a jurisdiction in which there are not yet many reported e-discovery decisions.

In Dahl v. Bain Capital Partners, LLC, Civil Action No. 07-12388-EFH (D. Mass. June 22, 2009) (click here), Judge Harrington noted that "the Local Rules of this court have yet to provide any guidance on
electronic discovery."  Id.at 1.  The court ruled on a discovery motion that addressed, among other things, issues concerning production of metadata and fee-shifting for discovery.  Regarding the latter, the court began by stating its presumption that "parties must satisfy their own costs in replying to discovery requests," although "electronic discovery costs can be shifted if the responding party identifies the source of the requested documents as not reasonably accessible because of an undue burden or cost on the responding party."  Id. at 2.  Because the producing party neglected "to identify which documents are inaccessible or the nature of that inaccessibility" or to "explain how they will sustain an undue burden or cost in producing documents," the court declined to shift the costs.  Id.  However, the court did rule that the responding parties "do not have to pay to change the format of their responsive documents" into a format desired by the requesting party, where the documents were otherwise "reasonably usable" in their ordinary format. Id. at 3.  Therefore, the court shifted the costs onto the requesting party "to pay: (1) for scanning and optical character recognition (“OCR”) for paper documents; and (2) for OCR for those electronic documents without text search capabilities."  Id.  At the same time, the court ruled that, if the producing parties OCR'd or otherwise changed the format of any of the produced documents for their own use in the case, they "should offer the [requesting party] access to these altered documents."  Id.

Regarding metadata, the court noted that the requesting parties "seek all of the metadata associated with emails and word documents produced," while the producing parties "refuse to produce all metadata and instead offer to provide 12 fields of metadata."  Id.at 4.  The court adopted the producing parties' limited approach, observing that "case law shows wariness about metadata’s value in litigation" and "producing diverse types of electronically stored information in the same format would be costly, burdensome, and ultimately fruitless." Id.  "Rather than a sweeping request for metadata, the [requestors] should tailor their requests to specific word documents, specific emails or specific sets of email, an arrangement that, according to their memorandum, suits" the producing parties.  Id.

All in all, the decision seems to reflect a balanced approach toward e-discovery in the context of this particular dispute.

The Format and Scope of E-Discovery Productions

A recent case addressed two important issues concerning the format for production of electronic documents and the showing necessary for a party to subject another party to intrusive tests by a third-party vendor to assess the completeness of a prior production.

Ford Motor Co. v. Edgewood Properties, Inc., -- F. Supp. 2d --, 2009 WL 1416223 (D.N.J. May 19, 2009) (click here), arose out of the demolition of an automotive assembly plant and the distribution of contaminated concrete from the plant.  Among other things, the defendant sought an order compelling plaintiff to reproduce its entire ESI production in native format, rather than in the format previously produced.  Defendant also sought to “confirm the adequacy of Ford's manual document collection process by using a third-party vendor to perform keyword searches on documents not in the existing repository of ESI, but instead, documents within the possession of certain ... custodians."  Id. at *1.

With respect to the format of the production, the defendant requested in its initial document request that plaintiff produce documents in native format; however, in responding, the plaintiff stated instead that it would produce electronically stored information in TIFF format with accompanying searchable text, but not in native format.  See id. at *5.  The parties apparently never reached an agreement as to how the documents would be produced, so plaintiff "unilaterally adopted its own objection and produced them in TIFF format."  Id.  Referencing the Sedona Principles, the court looked to the fact that the defendant failed to object to the TIFF format production until about eight months after the production - a delay that the court found "patently unreasonable," particularly in light of the fact that the production was long since complete.  Id. at *7.  The court therefore denied the defendant's request on the grounds that it would be "unduly burdensome to a party months after production to require that party to reconstitute their entire production to appease a late objection."  Id. at *8.

As to the second issue, regarding defendant's desire to require the plaintiff to permit a third-party vendor to perform random searches in various custodian electronic files, the court denied that request, as well.  The defendant argued that there was a suspicious absence of certain types of documents in the production made by the plaintiff, and posited that the document collection method used by the plaintiff must have been flawed.  To test that hypothesis, the defendant proposed having a vendor randomly search through electronic files for various employees of the plaintiff to see if responsive documents existed that were not produced.  Looking again to the Sedona Princples, the court noted that the producing party ordinarily "is the best position to determine the method by which they will collect documents," and that "the choice is clearly within the producing party's sound discretion."  Id.at *9.  Because the defendant's suspicions about missing documents was nothing more than "conclusory allegation premised on nefarious speculation ," id., the court denied the request.  "The notion that a document production is insufficient based on a belief that documents must exist simply is not enough to grant a motion to compel that would require Ford to go back to square one and begin its document collection efforts anew."  Id.  "To countenance such a holding would unreasonably put the shoe on the other foot and require a producing party to go to herculean and costly lengths (especially in a document-heavy case such as this) in the face of mere accusation to rebut a claim of withholding. This scenario is not contemplated by the Federal Rules."  Id.

So the lessons here are (1) if you're going to insist on a particular format for production of documents by the other side, you'd better actually insist upon it from the start, and (2) although the electronic discovery rules typically extend the volume of discovery in many cases, they are not a license to conduct fishing expeditions based on nothing more than a hunch that there's dirt that has not yet been uncovered.

DRI Report on the Future of Litigation

I previously reported in my post on March 13th about a joint report issued by the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System on the burdens of electronic discovery under the current rules.  If you haven't seen it yet, the Defense Research Institute (DRI) issued a report entitled "Future of Litigation" in January 2009 that, among other things, confirmed similar concerns among defense lawyers and some judges.

According to the report, many of the survey respondents and interviewees "pointed to e-discovery as a major factor further driving up the cost of litigation."  Report at 3. 

Interviewees agreed overwhelmingly that e-discovery is having and will have a profound impact on the future of litigation (using terms like “horrible” and “outrageous” to express their concern). Likewise, an overwhelming majority believe that it will be incumbent on judges to bring e-discovery under control – via effective rule enforcement; limiting “fishing expeditions;” imposing meaningful sanctions for abuse; and providing sufficient guidance to both parties regarding appropriate document production (and related processes).

Id.

Survey respondents focused on two separate aspects of e-discovery costs that cause concern. 

First, many are simply concerned that in an attempt to create fast, efficient discovery by requiring production of documents in electronic formats, the process has increased the volume of documents being produced resulting in inordinate costs of production and excessive time to conduct document reviews. Second, many lawyers are concerned that e-discovery requests and some rulings are imposing unreasonable continuing costs on clients by forcing long term document retention that adds costs on a defensive basis.

Id. at 4.  The report observed that some defense practitioners "are concerned that text retrieval technologies are encouraging plaintiffs to use discovery as an end rather than a means (e.g., to fight over discovery issues rather than focus on the merits of the case)."  Id.  "Specifically, many are concerned that e-discovery encourages a search for “needles in a haystack” – particularly as it relates to searching for documents that influence determination of punitive damages, but are not central to the merits of the litigation per se. Some representative quotes can illustrate this concern."  Id.

Those who are involved in electronic discovery in large cases undoubtedly have first-hand experience with some of those same concerns.  Add this report to the growing list of publications that have addressed some of the real costs posed by the e-discovery rules.

American College of Trial Lawyers Issues Report Critical of Electronic Discovery Rules

On March 11, 2009, the American College of Trial Lawyers and the Institute for the Advancement of the American Legal System issued their final report on a joint project to examine the role of discovery in the American civil justice system and to make recommendations for reform.

According to the joint press release, the group's proposals are "designed to treat the nation’s ailing system of civil justice."  In particular, the group concluded that "Discovery costs far too much and has become and end in itself; discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens."

According to the report, "discovery can cost far too much and can become an end in itself. As one respondent noted: 'The discovery rules in particular are impractical in that they promote full discovery as a value above almost everything else.'  Electronic discovery, in particular, needs a serious overhaul. It was described by one respondent as a 'morass.' Another respondent stated: 'The new rules are a nightmare. The bigger the case the more the abuse and the bigger the nightmare.'"

In general, the group has proposed that discovery be tailored to specific cases, based on the issues and amount in controversy.  Discovery should be "proportional" and staged where appropriate.  The group has suggested, among other things, that there be financial limitations on the amount of money that either party can spend, or be forced to spend by its opponent, on discovery.

Regarding e-discovery in particular, the group advocates for substantially curtailing the scope and breadth of current discovery called for under the federal rules.  As the group observed, "Electronic information is fundamentally different from other types of discovery in the following respects: it is everywhere, it is often hard to gain access to and it is typically and routinely erased. Under judicial interpretations, once a complaint is served, or perhaps even earlier, the parties have an obligation to preserve all material that may prove relevant during a civil action, including electronic information. That is very difficult, if not impossible, to accomplish in an environment in which litigants maintain enormous stores of electronic records. Electronic record keeping has led to the retention of information on a scale not contemplated by the framers of the procedural rules, a circumstance complicated by legitimate business practices that involve the periodic erasure of many electronic records.

The group recommends that "Electronic discovery should be limited by proportionality, taking into account the nature and scope of the case, relevance, importance to the court’s adjudication, expense and burdens."  Although Federal Rule of Civil Procedure 26(b)(2) is intended to address some of those concerns, the group concluded that it is insufficient as applied by the courts.  The group further proposes:

The obligation to preserve electronically-stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation; however, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.

Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes.

Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness.

The cost of preserving, collecting and reviewing electronically-stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases.

Many of the group's proposals make good sense, and in fact are guided by the spirit of the Sedona Principles and the federal rules.  Certainly some courts under the current rules have balanced the scope and costs of e-discovery against the issues and size of the litigation, but too often those considerations are not given the proper attention until too late in the process, or after substantial costs already have been incurred, sometimes with little relevant information gained in spite of the massive scope of data produced. 

I suspect that the group's recommendations will receive some resistance for the precise reason the group believes reform is necessary:  for some parties discovery is an end in itself, and is used for driving others to the settlement table simply to curtail the high costs of continuing to litigate.  Particularly in cases where there is only one institutional party, and so the e-discovery costs are borne almost entirely by one side, the incentive for the other side to agree to reasonable limitations on electronic discovery usually does not exist.  But these proposals offer a number of interesting ideas, and are sure to lead to "nationwide discussion" and "lively and informed debate," just as the drafters intended.

Computers Can't Do Everything in Electronic Discovery

So I’ve talked before about the new Federal Rule of Evidence 502, which generally provides that disclosures of privileged materials don’t waive the privilege if they were inadvertent and reasonable steps were taken to prevent the disclosure.  (See my posts of September 9thand November 2nd.)  Well what kinds of steps are “reasonable?”

I know my inbox gets clogged these days with unsolicited offers from electronic discovery consultants” and vendors who claim to be experts in e-discovery issues, many of which are trying to peddle various kinds of software that can be used to screen and sort through emails in an attempt to identify privileged emails based on search terms and other parameters the user can define.  Some of the offers sound too good to be true.  And in some cases they might be.

The temptation to assume we can just push a button and let a computer do all the work can be great, particularly when faced with the prospect of a large, expensive and time consuming document review.  But the simplicity of the process might come back to haunt you.

In Rhoads Indus., Inc. v. Building Materials Corp. of America, Civil Action No. 07-4756 (E.D. Pa. Nov. 14, 2008) (click here) , the plaintiff retained an IT consultant in anticipation of litigation.  As part of that preparation, the plaintiff also purchased a piece of software Discovery Attender or “Sherpa” that identifies emails and screens them for privilege, based on data input by the user.  The plaintiff later filed its lawsuit, and after the defendants served discovery requests, the plaintiff ran searches using Sherpa that identified about 210,000 emails, about 2,000 of which Sherpa tagged as privileged.  The plaintiff ran an additional more refined search that narrowed the results from 210,000 down to about 78,000 emails.  The plaintiff then manually reviewed some of the email mailboxes from which those 78,000 emails came, and identified some additional privileged emails – beyond the 2,000 that had been flagged by Sherpa already – and pulled them and listed them on a log; the plaintiff did not, for some reason, list the 2,000 privileged emails identified by Sherpa on the log.  The plaintiff produced the balance of the 78,000 emails.

A month or so later, one of the defendants informed the plaintiff that it had identified several apparently privileged emails among the tens of thousands produced by the plaintiff.  The plaintiff only then reviewed the entire collection of the 78,000 emails, and identified 812 additional emails that it contended were privileged and which it included on a new privilege log.  The plaintiff argued that all 812 of those emails should be returned; the defendants not surprisingly argued that the privilege had been waived.

The district court began its analysis by referencing a 5-factor test for inadvertent disclosures in place in that district for over a decade.  Under that test, the court focused on the following:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the extent of the document production.

(2) The number of inadvertent disclosures.

(3) The extent of the disclosure.

(4) Any delay and measures taken to rectify the disclosure.

(5) Whether the overriding interests of justice would or would not be served by

relieving the party of its errors.

Id. at 4 (internal quotation omitted).  The court observed that “Keyword and name searches are frequently employed as an initial method to screen and sort documents, but they are not foolproof.  For instance, privileged communications frequently creep into e-mail 'chains,' but may appear only to some participants in the chain depending on a user’s application of the 'reply' and 'forward' commands.”  Id. at 5.

In weighing the 5 factors, the court concluded that the first 4 weighed in favor of finding a waiver of the privilege.  Id. at 19.  Nevertheless, the court found that the fifth factor – the interest of justice – favored the plaintiff because “[l]oss of the attorney-client privilege in a high-stakes, hard-fought litigation is a severe sanction and can lead to serious prejudice.”  Id. 

Regarding the plaintiff’s failure to log the 2,000 emails Sherpa had identified as privileged until six months after they were withheld, the court found the plaintiff’s conduct inexcusable, and in breach of the privilege log requirements of Fed. R. Civ. P. 26(b)(5).  See id. at 17.  Upon reconsideration, the court clarified its holding with respect to non-logged emails, holding that segments of those 2,000 emails that had separately been logged with the 812 emails could be redacted from email strings in which they also were found within the 2,000 emails.  However, the court rejected the plaintiff’s argument that it should be able to shield any emails within an entire string, simply by logging the most recent email in the string.  See Rhoads Indus., Inc. v. Building Materials Corp. of America, Civil Action No. 07-4756 (E.D. Pa. Nov. 26, 2008) (click here).

Simple isn’t always better, nor is it always even adequate.

The Sometimes Impossible Task of Meeting Document Preservation Obligations

Sometimes the duty to preserve electronic data can extend to data that a party doesn't even know exists.

That was the holding in Ferron v. Search Cactus, L.L.C., 2008 WL 1902499 (S.D. Ohio Apr. 28, 2008) (click here).  In that case, the plaintiff (who was a lawyer) sued a company and some of its officers, alleging violations of an Ohio law that restricts unsolicited emails.  During discovery, the  defendants sought access to the plaintiff’s personal computer and a mirror image of plaintiff’s hard drives, in order to determine whether there was any electronic evidence suggesting that the plaintiff had solicited the emails by accessing various websites.

The plaintiff argued that he had “saved and preserved all of his commercial email since January 1, 2006,” which already had been produced, and that “no Defendant in this case has ever requested that he place a litigation hold on any other type of electronically stored information resident on his computers” until February 2008.  In spite of that, the court concluded, with little analysis, that the plaintiff’s preservation obligations extended well beyond both what he had done and what the defendants previously had requested.

The court found that the plaintiff’s document preservation efforts “do not sufficiently fulfill his duty to preserve evidence.”  Although the decision does not explain what exactly it was that the plaintiff failed to do, it appears that the court was concerned with the fact that the plaintiff had not taken steps to stop his computers from automatically overwriting data files that record details about Internet surfing.  Probably few non-IT computer users even know where such data files exist on their hard drives, how to preserve or image those files, or the effects of tampering with arcane aspects of their home computers’ operations.  So it's surprising that the court ruled that the plaintiff had breached his duty to preserve data, and that the defendants were them permitted to examine the plaintiff’s computers as a remedy for that apparent breach.

To lessen the likelihood of revealing confidential or privileged information to the defendants (remember, the plaintiff is a lawyer who used his computer for both personal and client-related business), the court set up a protocol in which the plaintiff’s forensic expert would first image the hard drives, then plaintiff would remove certain documents he believed included personal confidential information (like his bank account data), then the defendant’s forensic expert would access the hard drives and work with the plaintiff to identify and cull out data that the plaintiff contends is privileged.  According to the court, despite the fact that the defendant’s expert would be in a position to view that privileged data, he would be precluded from disclosing anything about it to the defendant – who is paying for the forensic work. 

In an attempt to minimize waiver of privilege concerns, the court sua sponte designated both sides’ experts as “officers of the court.”  The court did not explain exactly what that means, or how that designation would impact each sides’ experts going forward.  Although having the experts work together as officers of the court could be helpful in assuring that none of the data was improperly handled, it certainly would be more costly than having a neutral examiner appointed by the court (whose fees could be shared by the parties, rather than each side paying its own expert’s fees entirely for potentially duplicative work). 

Moreover, the court’s solution places at least the defendants’ expert in the awkward position of having knowledge of information that he can neither share with the party that retained him or use in any manner in forming his opinions in the case going forward, to the extent there is additional work in the case.  The court's resolution of the dispute probably raised more concerns than it answered.

Don't Forget the Rules Can Protect Both Parties During Discovery

There can be some sanity when it comes to electronic discovery.  Here’s a recent example of where a party requesting electronic discovery went too far, and paid the price.

In CBT Flint Partners, LLC v. Return Path, Inc., 2008 WL 4441920 (N.D. Ga. Aug. 7, 2008) (click here), the plaintiff previously filed an emergency motion to compel production of discovery, which the court had granted in part, but only on the condition that the plaintiff pay the defendant $300,000 as the costs of defendant conducting a privilege review of the requested materials.  The defendant filed a cross-motion seeking additional cost-shifting and attorneys’ fees related to the discover dispute raised by the plaintiff.

As the court summarized the situation, the plaintiff’s discovery requests “essentially called for every document at [defendant] that deals with the accused products in this case, which meant, in effect, every document in the company.”  Id. at *1.  The briefing on the discovery dispute stretched to 212 pages, with 147 exhibits.  In moving to compel, the plaintiff “made no effort either in meet-and-confer sessions or in its Emergency Motion to identify specific categories of documents that were relevant and not being provided,” and “engaged in no substantive discussion whatsoever about what discovery it really needed or why.”  Id.  The defendant actually had substantially completed production of the requested discovery less than two weeks after the deadline plaintiff sought to impose by his motion, which “included the production in native format of over 1.4 million documents that were produced as result of electronic searching that was performed by [defendant] based on 102 search terms that were ultimately selected by Plaintiff.”  Id. at *2. 

The plaintiff “filled the record with invective in both challenging the motives of [defendant] with respect to allegedly delaying discovery and challenging the honesty of [defendant’s] counsel with respect to their representations to the Court.”  Id.  Because of those allegations, the court reviewed hundreds of pages of e-mails, letters and other documents submitted with the briefs, and found that “based on its review of this entire record, Plaintiff's accusations that there had been a long campaign of stonewalling, delaying, and lying by [defendant’s] attorneys are just not true.”  Id. In particular, the court flat out rejected plaintiff’s accusation that it was the defendant which selected the electronic discovery search terms, rather than the plaintiff, finding plaintiff’s representation “extremely disturbing.”  Id. at *3. 

Based on all of that, the court held under Rule 37 that plaintiff was required to reimburse the defendant for 75% of its fees in responding to the discovery motion, which led to an award of over $86,000 in fees for the defendant.

Sometimes it may seem like no one is listening when a party responding to requests for electronic discovery complains about the burdens and costs involved, in relation to the potential relevance of what is being requested.  But at least in this case, the judge seems to have taken the time to dig into the dispute to prevent further abuse.

Another Reminder Not to Wait to Object to the Scope of Electronic Discovery

As with a lot of things, if you wait too long to complain about the scope or burdens of electronic discovery, you may be out of luck.  Another decision from this past summer reaffirms that result.

Square D Co. v. Scott Elec. Co., 2008 WL 2779067 (W.D. Pa. July 15, 2008) (click here), involved a long history of perceived resistance by one of the defendants, Globe Electric Supply Co., to submit to forensic inspection of is computer systems.  The court previously had found Globe in contempt and had ordered Globe to submit its computer systems to an inspection by the plaintiff, at Globe’s expense.  In the latest skirmish, the plaintiff sought entry of default judgment against Globe based on the defendant’s recalcitrance.

The latest dispute centered on Globe’s reactions to the inspection of Globe’s computer systems.  When the inspection finally occurred, Globe objected to the inspection for a variety of reasons, including by belatedly asserting that only one server and two workstations ever had any connection with plaintiff’s products, and therefore the other 11 workstations should be off limits.  Globe also raised, for the first time, the argument that the plaintiff should not be permitted to remove any imaged ESI from Globe’s facilities.

The court rejected Globe’s objections out of hand, stating that if “Globe wished to so limit the forensic inspection, it should have sought leave of Court to do so long ago as opposed to imposing limitations on the day of the inspection.”  With respect to Globe’s objection to the plaintiff’s removal of any images of ESI from Globe’s premises, the court likewise concluded that its prior orders never imposed any such restrictions, and that Globe was “more than late” in trying to do so once the inspection occurred.

Despite the history of reported obstructions by Globe, the court ultimately found that Globe’s conduct fell “just shy of conduct befitting default judgment,” although it warned Globe “that any further restrictions unilaterally imposed by it or its counsel on the forensic inspection (in any regard) as well as any other baseless barriers impeding the completion of discovery will be met with sanctions.”