New TAR Case Spotlights Perils with Broad ESI Protocols
New TAR Case Spotlights Perils with Broad ESI Protocols
December 16, 2020
Electronic Discovery 2020 Case Law Review
Electronic Discovery 2020 Case Law Review
February 1, 2021

Lessons Learned for 2021: Spotlighting the Top eDiscovery Cases from 2020

Lessons Learned for 2021

With the New Year upon us, it is worth looking back at some of the key eDiscovery cases from 2020 and examining the lessons they offer going forward in 2021.

Technology-Assisted Review: Sedona Principle Six versus Transparency

CasesLivingston v. City of Chicago, 2020 WL 5253848 (N.D. Ill. Sept. 3, 2020); and In re Valsartan, Losartan, and Irbesartan Products Liability Litig., 2020 WL 7054284 (D.N.J. Dec. 2, 2020).

SummaryLivingston validated the broad acceptance of Sedona Principle Six: Responding parties should be free to select the methods they believe will best facilitate reasonable and proportional productions of relevant information. The court confirmed that a responding party should be allowed to develop and run its selected technology-assisted review (TAR) workflow free from interference by the requesting party. In contrast, Valsartan refused to approve a responding party’s proposed TAR process and insisted that the design and execution of a TAR workflow required “an unprecedented degree of transparency” between the responding and requesting parties in accordance with their stipulated ESI order.

Lessons for 2021: Despite their contrasting results, Livingston and Valsartan are generally consistent with overall TAR jurisprudence from the past several years. TAR case law delineates that responding parties may generally use TAR without involving requesting parties in or providing complete transparency regarding the design and management of a TAR workflow unless the parties have stipulated otherwise in an ESI protocol. If there is a protocol regarding the use of TAR—particularly where that protocol is memorialized in an order, courts generally expect transparency regarding a responding party’s TAR process.

Honorable Mention:Lawson v. Spirit Aerosystems, Inc., 2020 WL 3288058 (D. Kan. June 18, 2020).

ESI Sanctions: Balancing Disposition Program Objectives with Preservation Requirements

Case:Estate of Moreno v. Correctional Healthcare Cos., 2020 WL 5740265 (E.D. Wash. June 1, 2020)

SummaryIn Moreno, the court issued terminating sanctions against two organizational defendants under Federal Rule of Civil Procedure (FRCP) 37(e) after defendants failed to preserve key internal emails regarding the care (or lack thereof) they provided to the decedent during his incarceration. Defendants eliminated the emails as part of a sweeping disposition program that (with limited exceptions) deleted messages older than six months and all other emails after one year. The court found the email disposition program was designed to help defendants avoid discovery obligations given that their in-house counsel, who was tasked with responding to plaintiffs’ discovery and executing defendants’ email disposition goals, generally failed to take steps to preserve the relevant emails.

Lessons for 2021:Moreno teaches the importance of deploying safeguards to ensure an information disposition program is truly defensible. An organization could deploy one or a combination of safeguards to better ensure the defensibility of its disposition program including: (1) Generating a checklist of key custodians whose documents might be required for a lawsuit; (2) conducting custodian interviews to identify locations of key documents; (3) creating an audit trail to confirm the steps the enterprise took to keep relevant information; and (4) requiring multiple stakeholders to confirm they have taken proper preservation steps rather than vesting all decision-making with a single individual.

Honorable Mention:Charlestown Capital Advisors, LLC v. Acero Junction, Inc., 2020 WL 5849096 (S.D.N.Y. Sept. 30, 2020).

ESI Protocols: Metadata Matters for Discovery and So Do Experts

CaseJavo Beverage Co. Inc. v. California Extraction Ventures, Inc., 2020 WL 2062146 (S.D. Cal. Apr. 29, 2020).

SummaryIn Javo Beverage, the court held that the parties’ ESI protocol should include a requirement that the parties produce relevant filepath information corresponding to their respective ESI. In reaching this determination, the court observed that metadata is generally relevant under the FRCP and that it was specifically relevant to ascertaining “the location and manner” in which plaintiff maintained its ESI for purposes of determining the viability of its trade secret claims. The court overruled plaintiff’s burden objections, rejecting them as unsubstantiated given plaintiff’s failure to offer an expert declaration on the issues.

Lessons for 2021:Javo Beverage highlights the ongoing importance of metadata and the need to ensure the disclosure of such information in discovery. In addition, Javo Beverage spotlights the value of having an eDiscovery expert provide a declaration to educate courts regarding these and other complex technical and procedural issues. Indeed, the court’s resolution of the disputed filepath information turned in substantial part on the testimony of defendants’ expert and the “very dearth of an actual expert declaration” from plaintiff.

Honorable Mention:Corker v. Costco Wholesale, 2020 WL 1987060 (W.D. Wash. Apr. 27, 2020).

FRCP 26(g)(3) Sanctions: Enforcing The “Stop and Think Mandate” for Discovery Requests

Case: Effyis, Inc. v. Kelly, 2020 WL 4915559 (E.D. Mich. Aug. 21, 2020).

Summary: Effyis held that defendant’s FRCP 34 document requests were so overly broad as to merit monetary sanctions under FRCP 26(g)(3). One request the court highlighted sought “any and all documents” relating to “any meetings” with a particular person. The court observed that such a request, “unbounded by time, relevance, or reason,” would subject plaintiff as the responding party to a “subjective guessing game” to determine whether any document (also broadly defined) could be included within the ambit of the request.

Lessons for 2021:Effyis stands for the proposition that courts may not tolerate the type of “garbage in, garbage out” discovery requests that have been recycled from other litigation. As Effyis teaches, overly broad discovery requests can invite the court’s wrath. Requesting parties should instead serve discovery requests that are both reasonable and narrowly crafted to more readily ensure the return of relevant and proportional information relating to the claims or defenses at issue. Ultimately, counsel should stop recycling canned requests and responses and think about the specific requirements of the case and the corresponding merits of each request, response, or production before serving them on litigation adversaries. See Fed. R. Civ. P. 26(g), 1983 Advisory Committee Note; Bottoms v. Liberty Life Assurance Co. of Bos., 2011 WL 6181423 (D. Colo. Dec. 13, 2011).

Honorable Mention:Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., Ltd., 2020 WL 2838806 (N.D. Cal. June 1, 2020).

Cross-Border Discovery: Be Prepared to Address Hague Convention Procedures and the GDPR

CaseBehrens v. Arconic, Inc., 2020 WL 1250956 (E.D. Pa. Mar. 13, 2020).

SummaryBehrens refused plaintiff’s request to obtain foreign discovery from a French entity through the FRCP and instead ordered plaintiff to use Hague Convention procedures to serve its document requests. In doing so, the court held that France’s interest in applying its blocking statute to U.S. discovery procedures was greater in this case than the U.S. interest in “fully and fairly adjudicating matters before its courts.” The court might have reached a different result had the incident at the heart of this litigation—the awful Grenfell Tower fire in London from June 2017—transpired in the U.S.

Lessons for 2021:Behrens contrasts with much of the cross-border jurisprudence arising from U.S. courts over the discovery of relevant information located in foreign countries. In applying the five-factor test from Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522 (1987), U.S. courts have generally held that American interests prevail over those of the foreign countries from whence discovery is sought. And yet, Behrens is not the only recent case favoring Hague Convention procedures over the FRCP on cross-border discovery issues. SeeSalt River Proj. Agri. Impr. and Power Dist. v. Trench France SAS, 17-cv-01468-DGC, 2018 WL 1382529 (D. Ariz. Mar. 19, 2018). Behrens ultimately suggests that counsel should be increasingly cognizant of the need to use Hague Convention procedures and other cross-border considerations such as the GDPR as they litigate discovery issues in the U.S.

Honorable Mention:In re Mercedes-Benz Emissions Litig., 2020 WL 487288 (D.N.J. Jan. 30, 2020).

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.