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“Zombie Cookies” and eDiscovery: Baking Privacy into the Proportionality Analysis

privacy the new factor in proportionality analysis

Proportionality standards have played an increasingly significant role in discovery since the enactment of the 2015 amendments to the Federal Rules of Civil Procedure (FRCP). FRCP 26(b)(1) lists six different factors, any combination of which a court may consider in determining whether the requested discovery is proportional to the needs of the case.

While cost issues—the amount in controversy or the expense of the requested discovery—often predominate, nonmonetary considerations are increasingly factoring into the proportionality analysis. That is particularly the case with privacy. With so many categories of personal and sensitive electronically stored information (ESI) now available on electronic devices, courts are invoking privacy with greater frequency to determine that discovery is disproportionate. A decision from Henson v. Turn, Inc., issued in October by U.S. Magistrate Judge Laurel Beeler, exemplifies the growing role of privacy in a responding party’s recipe for limiting discovery.

 

Henson v. Turn, Inc.

The discovery dispute in Henson[1] arose after defendant served plaintiffs with requests to image plaintiffs’ mobile devices and obtain their complete Internet browsing history on those devices. This discovery was ostensibly designed to gather information regarding plaintiffs’ claims that defendant had engaged in unfair business practices by creating enhanced internet tracking technology colloquially referred to as “zombie cookies.” Unlike a traditional cookie that a user can block or delete, zombie cookies “respawn” despite such user actions and allegedly enable defendant to continue monitoring and harvesting pertinent data from a user’s browser history.

Plaintiffs did not dispute that certain aspects of their browsing history, together with the cookies related to that history, were relevant and should be produced in discovery. Instead, plaintiff sought to limit the production of its browser history and cookies to the particular websites they visited that used defendant’s zombie cookie technology. Allowing defendant to obtain access to plaintiffs’ complete browsing history—together with the information defendant would obtain by imaging plaintiffs’ devices—would, argued plaintiffs, violate the relevance and proportionality limitations under FRCP 26(b)(1).

The court agreed with plaintiffs, holding that defendant’s discovery requests swept too broadly and would include any number of irrelevant documents such as “text messages, emails, contact lists, and photographs.” In addition, Judge Beeler emphasized the role of plaintiffs’ privacy interests in the data found on their mobile devices in determining that defendant’s discovery requests were disproportionate. While not expressly identified in FRCP 26(b)(1) as a proportionality factor, the court found that notions of privacy are implicitly baked into the proportionality analysis.

In particular, providing defendant with access to plaintiffs’ devices would allow it to explore any number of aspects of plaintiffs’ private life not relevant to the instant case. This could include spending habits, political information, romantic interests, familial and other associations, and information regarding user health. As the U.S. Supreme Court explained in Riley v. California,[2] mobile devices now routinely reflect such information and accordingly offer a mosaic of a user’s personal life. Providing defendant with unfettered access to such information would exceed proper limitations and open the possibility for abuse in the discovery process. Relying on Riley and other case law, together with legal scholarship on the issues,[3] the court concluded that such privacy concerns militated against the requested discovery.

 

The Impact of Henson on eDiscovery

The Henson decision should stand as an important reminder about the role of proportionality in the discovery process. Henson reinforces a key mandate from the 2015 FRCP amendments that requesting parties must consider proportionality limitations—including financial and non-monetary considerations—in connection with discovery. It also advances a particular recipe for success in discovery: that requesting parties should stay focused on the issues and work cooperatively with adversaries to keep requests from sweeping too broadly into irrelevant matters. Unless they do so, parties may very well find their discovery restricted in order to safeguard the privacy rights of litigants.


[1] Henson v. Turn, Inc., 15-cv-01497, 2018 WL 5281629 (N.D. Cal. Oct. 22, 2018).

[2] Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014).

[3] See Agnieska McPeak, Social Media, Smartphones, and Proportional Privacy in Civil Discovery, 64 U. Kan. L. Rev. 235 (2015).

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.
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