What Can You Learn from E-Discovery Case Law in 2023

In the absence of significant changes to the Federal Rules of Civil Procedure, case rulings define how the practice of e-discovery evolves over time. Exterro created the E-Discovery Case Law Project (EDCLP) to help e-discovery professionals keep up with the most recent case law, since rulings like the ones that follow in this whitepaper set precedents that influence how the court rules on future disputes.
 

In our latest EDCLP whitepaper, we looked at ten cases from 2022 and 2023 that have significant implications for e-discovery professionals. This article will examine three of the rulings for some timeless lessons any e-discovery professional should keep in mind.

Understand your e-discovery capabilities before agreeing to a protocol.

In In re Stubhub Refund Litigation, the court addressed a motion to compel the Defendant to produce hyperlinked documents as attachments with the emails in which they were linked. According to the agreed-upon ESI protocol, responsive items should include the email metadata outlined in the agreed-upon metadata table, including but not limited to all parent items and child files (including hyperlinks to internal or nonpublic documents) with the parent/child relationship preserved. The ESI protocol further provided that “emails with attachments, and email or other documents together with any documents referenced by document stubs or via links to internal document sources within those emails or other documents all constitute family groups.” Finally, the ESI protocol provided that “[h]yperlinked files must be produced as separate, attached documents.”

When the Defendant failed to meet this requirement, they earned a chiding from the bench, "[l]itigants should figure out what they are able to do before they enter into an agreement to do something” and should “live up to their agreements, especially when they are embodied in court orders, as the ESI protocol is here.”

Patricia Antezana of ReedSmith reminds readers, "Lawyers need to be knowledgeable about clients’ ESI and their technical capabilities before agreeing to ESI protocols. If parties agree to specific ESI protocols, those agreements are binding, and courts will enforce them. Defendant in this case was faced with, at least, increased discovery costs and expenses, and the Court left open the possibility of Plaintiffs’ filing a sanctions motion."

Documented data retention policies can defensibly reduce the risk of spoliation.

In Goodale v. Elavon, Inc., the court addressed the Defendant’s duty to preserve certain documents pertaining to the Plaintiff’s employment and subsequent termination. The Plaintiff argued that her call to an ethics and compliance hotline after her termination should have triggered the preservation of performance documentation. However, Defendant had in place a 90-day retention policy. When the court determined Plaintiff’s call to ethics and compliance hotline was not a “triggering event” that would have placed Defendant “on notice” to retain the weekly reports or summaries for potential future litigation.

Hon. Andrew Peck (ret.), now Senior Counsel at DLA Piper, summarizes the case thusly: "Employee complaints about workplace conditions that do not assert discrimination or the like, and do not mention litigation, are not enough to constitute “reasonable anticipation of litigation” so as to require a litigation hold." Organizations would be well served by documenting and implementing data retention policies to ensure the courts view potentially lost ESI in a similar light.

Make sure you're able to collect and preserve ESI from all communications technology your organization uses.

Both In Re Google Play Store Antitrust Litigation and Carty v. Steem Monsters Corp. hinged around collection of data from relatively new sources--Google's own Chat application and the Discord social media messaging platform. While Google was found to have spoliated data by virtue of not turning off auto-delete functions in its instant messaging system, Defendants Steem Monsters Corp. were found not to have spoliated data, in part because Plaintiff did not try to recover the information from the company that owns Discord and the lack of evidence of "intent to deprive."

Angie Nolet, Corporate Counsel at Redfin and co-founder of the eDiscovery Chicks Podcast, explained the sanctions against Google, "This case highlights the importance of both candor and cost clarity. Google’s efforts to “hide the ball” at every stage of discovery ultimately undermined its position. And its argument that preserving chat was too burdensome fell flat, partly because Google had no data-backed evidence about how costly it would be to preserve."

Download the 2023 E-Discovery Case Law in Review whitepaper today!