With the New Year upon us, it is worth reflecting on some of the key eDiscovery cases from 2016 and the lessons they offer for reducing the costs and risks of discovery. These cases also spotlight the expectations that courts will likely have for counsel and clients in 2017 and beyond.
Adopting a Cooperative Approach to Discovery
Case: Pyle v. Selective Ins. Co. of Amer., No. 2:16-cv-335, 2016 WL 5661749 (W.D. Pa. Sept. 30, 2016)
Summary: In Pyle, the court ordered the parties to jointly develop search terms that could be run against the email accounts for certain of defendant’s custodians. Before seeking the court’s assistance, defendant had invited plaintiff to help cooperatively prepare search terms. Plaintiff, however, refused to do so, arguing instead that defendant could identify the responsive emails without plaintiff’s help. The court found plaintiff’s intransigence on this issue to be “incomprehensible” since defendant’s request was both reasonable and proportional under the Federal Rules of Civil Procedure.
Lessons for 2017: Parties should explore adversarial cooperation on any number of discovery issues, including the use of electronic search methodologies. The joint development of search terms is clearly within the ambit of Chief Justice John Roberts’ view that litigation adversaries should work together to achieve “efficient access in discovery to information” and eliminate “wasteful or unnecessary discovery.” By engaging in cooperative advocacy, clients can more effectively manage litigation and are more likely to obtain results that are efficient and cost-effective.
Satisfying Proportionality Standards in Discovery
Case: Johnson v. Serenity Transportation, Inc., No. 15-cv-02004-JSC, 2016 WL 6393521 (N.D. Cal. Oct. 28, 2016)
Summary: Plaintiff sought production of non-privileged information responsive to the search terms it provided to defendant. In response, defendant withheld various responsive, non-privileged documents, arguing that the production would not be proportionate to the needs of the case. The court overruled the defendant’s proportionality objections and ordered the production of all responsive, non-privileged documents reflecting the existence of plaintiff’s search terms. The court observed that defendant could not arrogate to itself the right to determine which responsive information should be produced to plaintiff, particularly where defendant failed to show a production burden.
Lessons for 2017: Proportionality standards were not designed to be tools of obstruction and delay. Instead, these standards are focused on helping litigants adopt a reasoned and collaborative approach to discovery advocacy. Many sources have been developed to help counsel litigate discovery issues in a proportional manner. With proportionality enshrined as the one of the touchstones of discovery, 2017 is clearly the time when parties should begin adopting proportionate discovery practices.
Conducting a Reasonable Search in Discovery
Case: Rodman v. Safeway Inc., No. 11-cv-03003-JST, 2016 WL 5791210 (N.D. Cal. Oct. 6, 2016)
Summary: The Rodman case involved an inadequate search by defendant for electronic documents that were at the heart of plaintiff’s class actions claims. Several months after discovery closed and on the eve of trial, defendant belatedly turned over “ten highly relevant documents” from a “legacy computer drive.” The documents were located by a key witness who – lacking guidance or direction from either counsel or IT professionals – had unsuccessfully searched for that same information several months earlier. All of which led the court to conclude that defendant violated Rule 26(g) by failing to conduct a reasonable search and then impose over a half-million dollars in sanctions on defendant.
Lessons for 2017: Counsel must be involved in the search process to ensure that an adequate search transpires. Technical expertise should also be enlisted to supplement counsel’s oversight duties. This includes engaging eDiscovery consultants or service providers that can assist counsel who lack sophistication in this field. IT professionals and enabling technologies should also be used to help address eDiscovery search complexities. As Rodman teaches, the client – without that help – will likely fail to collect the relevant information that must be produced in discovery.
Making the Case for Information Governance
Case: Sell v. Country Life Ins. Co., No. CV-15-00353-PHX-DJH, 2016 WL 3179461 (D. Ariz. June 1, 2016)
Summary: In Sell, the court issued an order of default judgment against defendant for its discovery failings. At the heart of the court’s order was its disapproval of defendant’s information retention and preservation measures respecting email. Defendant took little effort to retain or preserve important emails reflecting discussions among claims analysts regarding the denial of an insurance claim. Instead, defendant allowed its retention and preservation protocols to “exclude from the claim file any email communications that could potentially harm Defendant’s position in subsequent litigation.”
Lessons for 2017: Organizations need to develop an information governance program so they are prepared to satisfy the demands of discovery. While information security and data protection are integral parts of an IG program, parties must also create reasonable records retention policies so they are prepared for litigation. Indeed, retention protocols that provide for effective upstream management of information are essential for responding to downstream discovery requests. Those proactive protocols become all the more useful when they are coupled with a reactive litigation readiness plan, particularly a litigation hold process.