3 Important Lessons from E-Discovery Case Law from Fall 2023

E-Discovery case law rulings are issued seemingly every day, and all of them probably contain lessons that professionals working in the field should pay attention to. They provide legal teams with valuable insights, guidance, and precedent that are essential for effective and compliant electronic discovery processes. 

Case law rulings establish legal precedent, serving as a reference point for similar cases in the future. They provide insights into best practices for handling electronic evidence, so you can learn from others' successes--and failures. By staying informed about e-discovery case law, legal teams can better navigate potential pitfalls and reduce the risk of sanctions or adverse rulings.

While keeping abreast of these rulings is a key aspect of maintaining legal proficiency in an increasingly digital and data-driven legal landscape, it can be difficult to sort out the important and relevant rulings from those that aren't. That's one reason why Exterro established the E-Discovery Case Law Project--to identify and share key lessons from important case law rulings. Looking back over the past few months, here are some highlights worth keeping in mind.

Be Careful How You Process ESI for E-Discovery Production

In Hoehl Family Foundation v. Roberts, Defendants' efforts to get their files organized in preparation for production turned into an issue for them, as it end up stripping out key metadata that should have been attached to each file. Plaintiffs moved to compel the production of the documents in the native format--an error that could have been avoided by understanding and using standard e-discovery technology. As Hon. Andrew Peck points out in his analysis of the case, "Metadata is important to e-discovery. Be careful that employee collection, such as in moving ESI to forward it to counsel, does not inadvertently strip metadata. And as we are seeing more and more in the case law, courts will hold parties to what they agreed to do in an ESI a protocol— here, to produce ESI with its metadata. Be careful that you can do what you agree to do."

Be Specific When Objecting to (or Making) Discovery Requests

There's always a temptation to use terminology from the FRCP or from previous, well-know court decisions when framing one's e-discovery motions--or responding to them. However, including a catch phrase, such as "unduly burdensome," the burden still falls on the party to explain why their point of view is value, ideally using solid evidence. In Estate of Daher, by and through Daher v. LSH Co., a proportionality argument was offered (among other excuses) to explain why decrypting data was unnecessary, but the courts didn't buy the reasoning. Patricia Antezana, Counsel at ReedSmith, explains, "Parties must attempt to quantify the burden and/or costs of responding to discovery requests if they are going to argue that the requests are unduly burdensome. Without concrete evidence of costs and expenses to collect information or support to show how a collection would be unduly burdensome, courts may be unwilling to find undue burden."

Failure to Create a Novel Record Is Not Failure to Preserve

In Walkie Check Productions, LLC v. ViacomCBS Inc., a TV show producer moved for sanctions on the grounds that Defendants failed to record episode of a program that were live-streamed over the internet, since Plaintiff had informed them of their intention to sue. But the courts ruled otherwise, explaining that the "reasonable anticipation of litigation" required them to preserve existing data, rather than translating into an affirmative obligation to create and preserve a new type of data that otherwise wouldn't exist. David Cohen, Chair of the E-Discovery Group at ReedSmith, notes, "This case makes an interesting distinction between failure to preserve versus failure to record evidence. Past cases have held that failure to turn off automatic deletion of already existing or recorded data can constitute spoliation of evidence—such as when parties fail to preserve potentially relevant text messages or recorded audios or videos. In this case, however, U.S. District Court Judge Katherine Polk Failla declined to extend preservation duties to impose a new obligation to record, ruling that you cannot have spoliation of information that was never recorded in the first place."
 

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