By Scott Giordano, Esq. (Guest Writer)
It seems like basic e-discovery advice, but it bears repeating: ask for the specific ESI you want in your requests for production, or risk losing them. In this contract dispute matter between security services provider ADT and defendant Pinnacle Security, also a security services provider, ADT objected to a denial previously issued by Magistrate Judge Young B. Kim for additional ESI production by Pinnacle. The order also directed the parties to resolve one of their e-discovery disputes via a meet and confer. The objections to that denial listed in this motion, ADT Security Services, Inc. v. Pinnacle Security, LLC, (N.D. Ill. July 11, 2012) were overruled principally because ADT requested ESI not specified in its original requests for production. ADT’s objections addressed three areas:
- Pinnacle’s duty of preservation: Pinnacle apparently did not issue a litigation hold to prevent the destruction of ESI upon commencement of the action, but rather implemented a blanket “no-delete” policy to preserve ESI residing on its computers and servers. At the time of this motion, Judge Kim had not yet ruled on the propriety of Pinnacle’s policy, and so the assigned judge, James F. Holderman, overruled ADT’s objection, instead ordering a meet and confer between the parties to resolve the matter.
- ADT’s request that Pinnacle redo its ESI search: ADT issued four sets of document requests and concluded that, based upon the disparity of Pinnacle’s production verses theirs, there must be missing documents, and filed a motion to compel for production. Judge Kim previously ruled that because ADT’s motion only offered a general assertion that documents must be missing rather than specific information that would make Pinnacle’s response adequate, their motion was denied. Judge Holderman overruled ADT’s objection to this denial, noting that Pinnacle asked for the computers of ten additional employees be searched, employees not identified in the original discovery requests.
- Production of the Monitronics Settlement Agreement: ADT had previously requested Judge Kim to order Pinnacle to turn over a copy of a settlement agreement it signed with Monitronics International, another security systems provider. ADT had requested the document for the first time in a reply brief to its fourth document request. Judge Kim denied the request given that such a document had to be “identified for the first time during a deposition," and Judge Holderman overruled ADT’s objection, stating that ADT must show that its request for the agreement was included in its original document request, which it could not.
Regular readers of the Beat probably cringed at Pinnacle’s preservation “strategy” for a few reasons. First, employees have an uncanny ability to destroy ESI in ways not envisioned by the company— how many of you have heard of servers being disposed of (along with responsive ESI) by IT personnel who didn’t know about the pending litigation? Secondly, issuing a notice demonstrates good faith that the company is trying to locate the requested ESI (who knows, a hold notice to employees might even precipitate some documents that are exculpatory). Finally, there’s the storage issue. With some estimates of annual ESI growth at approximately 60%, do businesses want to pay for that much additional space? Pinnacle might want to re-visit their strategy.
Readers might have also questioned how ADT scoped their production requests—the Beat certainly does. With respect to ADT’s request for Pinnacle to redo a search on the computers of ten additional employees, Judge Holderman cited the lack of specificity in the original request, and referenced the Seventh Circuit Electronic Discovery Committee’s Principles Relating to the Discovery of Electronically Stored Information, Principle 1.03: "[t]o further the application of the proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as practicable." With respect to its request for the Monitronics agreement, Judge Kim had earlier rejected it because it "referenced [the agreement in] its fourth request for production of documents in its reply brief for the first time[.]" Judge Holderman upheld this determination, stating that “[b]ecause ADT did not identify its fourth request for production of documents as the source of Pinnacle's obligation to turn over the Monitronics Agreement in its initial brief, its reliance on its fourth request is waived.”
So, what does the Beat think ADT should have done? Well, for starters, their “there must be something missing” argument would have been much stronger had they applied e-mail threading or similar technology that would have definitively revealed both missing “links” in email chains and indicators of email traffic to and from those 10 employees. As far as the Monitronics document is concerned, the record is a bit murky, but it looks like an oversight on ADT’s part to reference the Monitronics document in its fourth request. The upshot of all of this? Much of e-discovery victory relies on convincing the judge that what you’re looking for on your opponent’s computer is truly there. Technology that helps visualize this (perhaps along with some analysis by an expert), coupled with a timely request, will go a long way.
Scott Giordano is an experienced attorney with more than 16 years legal, technology and risk management consulting experience. Holding both Information Security Systems Professional (CISSP) and Certified Information Privacy Professional (CIPP) certifications, Giordano serves as Exterro's subject matter expert on the intersection of law and technology as it applies to e-discovery, information governance, compliance and risk management issues.