Court Highlights Importance of Specificity in ESI Production Issues

Li v. Merck & Co. (N.D. Cal. Feb. 7, 2025)

Why This Alert Is Important

The ruling in Li v. Merck & Co. underscores the critical importance of specificity in Requests for Production (RFPs) and the need for good-faith collaboration during discovery disputes. Legal professionals and eDiscovery teams can draw key lessons to enhance efficiency and compliance in document production. 

Overview 

In this employment law case, a terminated employee (plaintiff) sued her former employer, Merck & Co., the defendant. The case involved several disputes over the production of ESI, including issues around how documents were produced by both parties and when the duty to preserve potentially relevant evidence was triggered. The arguments unfolded as follows. 

• The defendants argued that the plaintiff’s documents were disorganized, lacked metadata, and were improperly formatted. Defendants sought an order compelling the plaintiff to redo the production fully, including imaging her devices. The defendants produced a 10 page PDF file that demonstrated the problems they cited. 
• The plaintiff argued that the defendants produced documents that were neither labeled to correspond to her requests for production (RFPs) nor in the format they would exist in during "the ordinary course of business," another acceptable format for production.
• The defendants also argued that plaintiff was evasive in her answers to questions about when she "contemplated" or "anticipated litigation against [her] employer" in December 2022, and therefore should have incurred the obligation to preserve ESI from that date because she looked for a lawyer to consult with as to her rights in the situation. 

Ruling Summary

• No Complete "Redo" of Production. The court declined to grant the defendants' request for a full redo of the plaintiff's document production, explaining that, “the Court would like to see a demonstration that the problems Defendants have identified are pervasive and that the issue is not just a couple of unfortunate examples,” which is all the 10 page sample demonstrated. To this end, the court instructed the defendants to submit a specific and representative sample of 200 to 300 pages of the plaintiff’s produced documents that clearly illustrate the issues in question within seven days.
• The Beauty of Symmetry Illustrated. The court provided a similar ruling on the plaintiff's argument against the defendants' production, albeit without any examples. “Plaintiff does not provide any examples of the problems she says exist. The court ORDERS Plaintiff to file 200 to 300 pages of Defendants’ produced documents, in the form produced by Defendants, that illustrate the problems Plaintiff sees in their document production" also within seven days.
• Understanding One's Rights Not Tantamount to "Anticipation of Litigation." The court evaluated the Plaintiff’s responses to questions whether she contemplated or anticipated litigation against her employer as of December 2022, and ruled against the defendants' contention, citing the lack of "any legal authority for the proposition that looking for a lawyer to consult with to find out what one’s rights are is necessarily the same thing as contemplating or anticipating litigation."
  
   

Data Privacy Tip

Use good faith and specificity in RFPs to avoid production disputes and ensure proportionality, while engaging in productive meet-and-confer sessions to resolve discovery issues effectively. Refresh your understanding of these concepts (and more) in Exterro's Layman's Guide to the FRCP.