The article below was published in the June 2018 edition of Law Journal Newsletters Cyber Security Law & Strategy.
By Mike Hamilton
The winter of 2017-18 saw court rulings on e-discovery matters that:
- Reinforced the need for tailored requests, specific arguments, and reasonable justifications;
- Demonstrated why good faith privilege reviews are critical to maintaining credibility for future privilege disputes; and
- Provided a template for a cooperative technology-assisted review process that mandated both technology and a cooperative
Be Specific If You Want Additional Discovery
Firefighters’ Retirement System v. Citco Group Limited (M.D. La., Jan. 3, 2018)
Winning a motion to compel additional discovery starts with crafting a narrowly tailored request with a reasonable justification. Without those two important components, you’ll likely lose.
In this unfair trade practices case, the plaintiffs renewed their motion to compel the defendants to conduct additional searches for relevant information. The defendants argued that this request would be disproportionate to the needs of the case.
The plaintiff had previously filed a motion to compel, which sought an order for the defendants to respond to multiple interrogatories about the defendants” discovery procedures. Within a status conference, the court ruled that a 30(b)(6) deposition would help clarify and answer the plaintiffs” questions.
Unsatisfied with the responses given in the 30(b)(6) deposition, the plaintiffs claim that the witness’s responses were “incomplete and inaccurate” leading to a “flawed list of custodians,” resulting in a “flawed electronic search for documents.” Alternatively, the defendants argued that a reasonable search for relevant data was conducted and any subsequent searches were not necessary under Rule 26(b)(1).
- Motion to Compel Denied. The court ruled that the plaintiff never explained why the initial set of discovery terms was unreasonable, didn’t specify what additional custodians needed to be searched, and offered an unreasonable alternative measure for subsequent discovery
- No Going Back to “Square One.” The plaintiffs requested permission to email all the defendants” employees to see if they had “knowledge relevant to this litigation.” The court ruled that this request was “simply unreasonable” because it was a request for the defendants to “go back to square one” even though discovery parameters were already agreed
- Unduly Burdensome under Rule 26(b)(1). Since the defendants are open to discussing adding additional specific custodians and search terms, the plaintiffs” request for “such a large-scale search raises proportionality concerns” and “would be unduly burdensome” for the
“Cooperation and reasonableness are still the gold standard when it comes to discovery disputes.
This case may have turned out differently if the plaintiff had just identified a few additional custodians and search terms, and provided a basis for these additions. The defendants were willing to supplement their production if there was a basis for doing so, but plaintiffs refused to meet them halfway. Don’t cut off your nose to spite your face.”
-Cristin Traylor, Esq., Counsel, McGuireWoods
Pick the Right Battles in Disputes over Privilege Review
Fairholme Funds, Inc. v. United States (Fed. Cl. Oct. 23, 2017)
When contemplating discovery procedures, be sure to educate the court on what you think is the most streamlined, cost-effective approach.
While the Court of Federal Claims doesn’t often deal with large document e-discovery issues all that often, in this case, shareholders sued the government on a Fifth Amendment claim for a regulatory taking based on the denial of stock dividends.
In the case, the government withheld documents on the basis of privilege, but the plaintiffs did not trust the government’s privilege determinations. The plaintiffs sought to compel a “quick peek” at 1,500 documents that were withheld as privileged under procedures spelled out in FRE 502 (d). The defendant refused, explaining that they wouldn’t consent to the quick peek and that a “comprehensive review” was already completed.
- “Quick Peek” Granted. Knowing that if the quick peek was denied the plaintiff would subsequently seek an in-camera review, the court granted the “quick peek” at the documents in
- Credibility Concerns at Play. The government had lost credibility in an earlier privilege challenge. They had claimed privilege on 38 documents, but when challenged, on a second look they ended up producing 22 of
- Expediency Plays a Role. As the case was near the end of the discovery period, the court wanted to end discovery and move forward with the case. The court found that the government had produced documents piecemeal and therefore granted the “quick peek” as it was a “more viable and attractive ”
“There will always be “gray-area” documents that reasonable people can disagree about, but be as careful as you can in the privilege review. Don’t make long-shot arguments. If you think you’d have a 5% or 10% chance of winning an argument that the document is privileged, don’t make that argument because that will lose you credibility if the issue comes to a head.”
-David Cohen, Partner and Chair of Records and E-Discovery Group, Reed Smith LLP
Court Provides a Template for TAR … and It Includes Cooperation
In Re Broiler Antitrust (N.D. Ill., Jan 3, 2018)
If you’re going to use technology assisted review (TAR), take a look at the order used in this case, which gives an ideal blueprint for managing the TAR process.
In this class action lawsuit, the plaintiffs alleged that companies in the broiler chicken industry were colluding to limit the supply of chickens to double the prices consumers would need to pay for chicken. In this document-intensive antitrust case, the judge appointed a special master to help the parties resolve e-discovery disputes.
The court issued a long, very detailed procedure for how the parties were to conduct TAR,
including search, validation and document sourcing approaches. The order is split into three primary sections: 1) How the parties will act; 2) what search technologies will be used; and 3) outlines a document review validation protocol.
- Detailed TAR Process Defined. The court’s order addresses elements of the review process including: 1) How the parties will act; 2) what search technologies will be used; and 3) outlines a document review validation
- Cooperation between Parties Mandated. Equally important to the technology to be used in document review, the ruling stipulates that the parties communicate frequently, proposing and revising search terms in by “work[ing] together in good faith
- Court Retains Final Authority. While the ruling puts the onus of cooperation on the parties, it retained the Special Master”s prerogative to provide “assistance … in resolving such disputes” and “render a decision, subject to the Parties’ rights to petition” when the plaintiff and defendant could not reach
“Five years ago, people were predicting that human review was going to be going away and everything was going to be replaced by TAR. It hasn’t happened. I have these conversations in almost every case with more than 25,000 documents to review: Can we use TAR to speed it up? More often than not, the answer is no. Parties are afraid to use TAR, because they’re afraid of these kinds of details, negotiations, and court battles that will end up costing more than the savings.”
-David Cohen, Partner and Chair of Records and E-Discovery Group, Reed Smith LLP
In looking at key lessons learned from these three important e-discovery case rulings from the winter of 2017-18, legal professionals should bear in mind:
- Create specific parameters (custodians, search terms) along with a justification for adding them when making a motion to compel additional
- Don’t be afraid to cooperate especially when your opponent is willing to
- If a Rule 30(b)(6) witness doesn’t answer questions to your liking, don’t jump to file a motion to compel.
- Always get a FRE 502(d) order!
- Educate the court on what you think is the most “just, speedy and inexpensive” means for resolving the
- Cooperation is key when using
- Effectively using TAR doesn’t mean you should neglect other search techniques like keyword
- Validation of the search results is key for any TAR protocol. Parties must be equipped with experts to assess and ensure the right data is being
Mike Hamilton is the Director of E-Discovery Programs at Exterro. With a legal and business background, Mike is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need to know e-discovery issues.