With the New Year upon us, it is worth looking back at some of the key eDiscovery cases from 2019 and examining the lessons they offer going forward in 2020.
Understanding the Challenges with Obtaining and Producing Relevant Content from Slack
Case: Calendar Research LLC v. StubHub, Inc. , No. 17-cv-4062, 2019 WL 1581406 (C.D. Cal. Mar. 14, 2019).
Summary: In Calendar Research, plaintiff filed a discovery motion seeking production of Slack messages from two of the individual defendants. Plaintiff did so after finding that defendants had produced “Slack email notifications, which alert users to pending messages, but not the messages themselves.” While defendants began producing the requested messages, the court observed that defendants were tardy in accomplishing their production of Slack messages due to technical problems they experienced trying to export messages from Slack. The technical problems arose from defendants’ use of a free Slack account, which did not have eDiscovery export capabilities, and because Slack would not give defendants a complete export from the corporate account since it included data from other users who were not parties to the litigation and whose consent to the export had not been obtained. Defendants were able to complete their production by upgrading to a “premium account” and by obtaining a “utility tool” from Slack that enabled them to obtain messages from their Slack “private channels.”
Lessons for 2020: Slack is a popular cloud-based team collaboration and messaging platform whose messages and other content that users exchange is being increasingly sought in discovery. To avoid the complications that arose in Calendar Research, counsel should determine whether the client is using Slack, develop an understanding of how the technology has been implemented, and take steps to preserve and then collect messages, files, and other relevant content for review and production. Lawyers should also consider engaging eDiscovery service providers with experienced and technically savvy experts and staff who follow best practices for obtaining, processing, reviewing, and producing Slack messages.
Continuing Education of the Federal Judiciary regarding the 2015 FRCP Amendments
Case: In re Generic Pharms. Pricing Antitrust Litig., No. 2:16-md-02724-CMR (E.D. Pa. Oct. 24, 2019).
Summary: In this multidistrict litigation involving price fixing allegations against dozens of pharmaceutical companies, the court issued a case management order (CMO) designed “to move the litigation forward.” In an apparent effort to do so, the CMO delineates provisions that are strikingly overbroad. They include a preservation mandate for “any and all communications in any potentially relevant custodial file” and a requirement that the parties’ search terms include, at a minimum, “all drugs named in any complaint and all Defendants.” The most offensive provision is the court’s directive to defendants to produce documents without any “relevance or responsiveness” review. Taken together with the overly broad search term requirement, such a provision will likely result in the production of irrelevant documents reflecting proprietary and confidential information to industry competitors (all of whom have been joined as defendants in this lawsuit).
In response, defendants filed a writ of mandamus to obtain relief from the CMO’s troublesome provisions. The Third Circuit denied the request in a 2-1 split decision and held the CMO was a proper exercise of the district court’s “wide latitude in controlling discovery.” Based on the dissenting judge’s view that the CMO “constitutes a serious and exceptional error” given its inexplicable deviation from FRCP 26(b)(1) and 34(b)(2)(C), defendants have now filed a petition for en banc review of their request for mandamus.
Lessons for 2020: The 2015 FRCP amendments have been heralded for their effectiveness in addressing discovery disputes. However, as U.S. District Judge David Campbell has observed regarding the amendments, “[o]ld habits die hard.”
 Even four years after their implementation, not every U.S. district judge or magistrate judge is aware of the FRCP amendments or necessarily feels constrained to follow their strictures. Lawyers should be aware of this fact and work to educate the judiciary—either formally in litigation or informally through education programs—wherever possible in order to better ensure they obtain results for their clients that are more consistent with
the following FRCP objectives:
“providing efficient access to what is needed to prove a claim or defense” while reducing “unnecessary or wasteful discovery.”
Parties Must Exercise Caution Using Ephemeral Messaging during Litigation
Case: Herzig v. Arkansas Foundation for Medical Care, Inc., No. 2:18-CV-02101, 2019 WL 2870106 (W.D. Ark. July 3, 2019).
Summary: In Herzig, the court held that plaintiffs improperly used Signal, an ephemeral messaging application, to prevent relevant communications from being disclosed to defendant. Plaintiffs had been ordered early in discovery to produce relevant text messages after they initially refused to divulge those communications to defendant. After reluctantly complying with the court’s production order, plaintiffs began using the Signal app to communicate with each other, “manually configuring” the application to automate the destruction of their respective messages “after a short period of time.” Plaintiffs’ use of Signal was not discovered until near the close of discovery, at which time the court concluded plaintiffs used the app nefariously to conceal the existence of relevant communications. While plaintiffs’ malfeasance likely merited severe sanctions, the court found it unnecessary to impose such sanctions as it simultaneously granted defendant’s motion for summary judgment and dismissed the action.
Lessons for 2020: Herzig reinforces the proposition that parties should exercise care in their use of ephemeral messaging applications during litigation once a duty to preserve has attached. Common law preservation requirements mandate that parties to reasonably anticipated or pending litigation preserve relevant evidence. Because ephemeral messaging can deprive adversaries of relevant evidence in litigation, lawyers should ascertain whether their clients are using ephemeral messaging applications and determine the preservation limitations associated with those tools. Only then can the client be properly advised on whether to suspend aspects of ephemeral messaging and which custodians will be affected.
Federal Rule of Evidence 502(d) Non-Waiver Orders Safeguard Parties from Disaster
Case: Bellamy v. Wal-Mart Stores, Texas, LLC, Civil Action No. SA-18-CV-60-XR, 2019 WL 3936992 (W.D. Tex. Aug. 19, 2019).
Summary: Bellamy involved a defendant that mistakenly produced a file of attorney-client privileged documents to plaintiff. Since the parties did not obtain a Federal Rule of Evidence (FRE) 502(d) non-waiver order, the court analyzed the question of waiver under FRE 502(b). While defendant established that its production of privileged documents was legally inadvertent under FRE 502(b), that did not end the court’s inquiry. The privileged documents revealed several discovery abuses including defendant’s failure to identify in its initial disclosures the existence of key witnesses; its failure to produce crucial evidence in response to plaintiff’s discovery requests; its failure to preserve relevant video footage; and its failure to disclose any of the foregoing to plaintiff. In response, the court imposed monetary sanctions against defendant and also issued a curative measure under FRCP 37(e)(1) that was, in effect, a preclusion sanction as it would prevent defendant from asserting that plaintiff was contributorily negligent in connection with her slip and fall at defendant’s store.
Lessons for 2020: Bellamy is instructive on various issues, but particularly regarding the importance of obtaining a non-waiver order under FRE 502(d). As the court in Bellamy observed, defendant’s failure to seek an FRE 502(d) order was “was the first of many mistakes by Defendant’s counsel in this case.” With a 502(d) order in place, the defendant could have demanded the return of the privileged documents and plaintiff would have had no other recourse to address the contents of the privileged materials except by seeking their disclosure under the crime-fraud exception to the attorney-client privilege (a difficult burden to satisfy). While such a result would have been perverse in this instance (which neither the court nor this blog would support), the point is that FRE 502(d) non-waiver orders provide a seamless and effective way to avoid motion practice or other issues over the mistaken disclosure of privileged documents.