If You Want to Avoid Sanctions, Hire an E-discovery Consultant!

If You Want to Avoid Sanctions, Hire an E-discovery Consultant!

Brown v. FPI Mgmt, No. 4:11-cv-5414 YGR (KAW), 2013 U.S. Dist. LEXIS 1040 (N.D. Cal. Jan. 3, 2013)

The Federal Rules of Civil Procedure were updated almost a decade ago to include rules regarding the production of ESI, but the case law involving the discovery of ESI is still maturing. Many litigants producing documents in litigation are still trying the old “my system isn’t good enough to find the documents” defense.  However the Courts are starting to become wary of such defenses and in the above captioned matter, defendant producer’s argument that producing requested documents was unduly burdensome was rejected:

Defendant argued that it would be difficult to find responsive documents because 1) the terms “Community Director” and “Portfolio Manager” are commonly used in email signatures, 2) the term “promotion” is commonly used throughout emails, and 3) FPI’s email system is not capable of conducting advanced searches. But the Court rejected the argument because Defendant could have used other search terms, or simply sort through the emails, to find the responsive documents. By interviewing its employees or by consulting its own records, Defendant ought to be able to narrow its searches by the persons involved and the approximate dates. Although Defendant may not know how to efficiently conduct a search of its email system, that does not relieve it of its discovery obligations. It may need to utilize the assistance of IT personnel or obtain a consultant to help conduct the search.

Defendant did not provide the Court with an estimate of the cost or the amount of time needed for discovery, nor did it provide a declaration of an e-discovery expert to substantiate its assertion that the documents were not reasonably accessible. Accordingly, the Court held that Defendant did not make a good-faith effort to produce  responsive documents.

The court acknowledged that defendants might still find that the documents were not reasonably accessible.  But if that were the case, the court could still order sampling of the emails at issue, or it could permit plaintiffs to conduct discovery on the costs and burdens of providing the emails, or plaintiffs might have to share some of the costs.

Retrieving 500 DVD’s of Archived Data with the Use of a Robotic Arm is NOT Unduly Burdensome

Retrieving 500 DVD’s of Archived Data with the Use of a Robotic Arm is NOT Unduly Burdensome

Starbucks Corp. v. ADT Security Services, Inc., 2009 U.S. Dist. LEXIS 120941 (W.D. Wash. Apr. 30, 2009)

The controversy involved ESI stored on a Plasmon archiving system which producer argued was so cumbersome that the data contained within it was not reasonably accessible because of undue burden or cost under Rule 26(b)(2)(B). The system was described as similar to an optical jukebox, containing 500 double-sided DVDs accessed by a robotic arm. The limitations of the system caused producer to replace the Plasmon system with a new system, but data on the Plasmon system had not been migrated.

Producer’s expert testified that production of the requested emails could potentially involve the access of all of the 500 DVDs in the system. Only one custodian’s email could be recovered at a time, preventing access by producer’s employees of archived emails while the searches were in progress. Attempts to access more than one user’s emails at a time caused the system to freeze, requiring a cumbersome reboot. As only 8 emails per hour could be restored, the total restoration of 25,000 emails (assuming 11 hours per day) would take 284 days. Restoration for 5 custodians could therefore take up to 5 years. Outside vendors could not perform the restoration as many of the DVDs could be only be read by proprietary equipment owned by producer, and producer would be without access to the information during the restoration process. The expert estimated the cost of retrieval at about $834,000, significantly higher than producer’s original $88,000 estimate.

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Extortion by E-discovery: Court Grants Protective Order

Extortion by E-discovery: Court Grants Protective Order

Rodriguez-Torres v. Governmental Development Bank of Puerto Rico, 2010 U.S. Dist. LEXIS 3958 (D.P.R. Jan. 20, 2010)

In an employment discrimination case, plaintiff requestors sought emails and calendar entries in native format as follows:

For each year 2007, 2008, 2009, produce in native electronic format with its original metadata all e-mail communications and calendar entries describing, relating or referring to plaintiff Vicky Rodriguez, both inbound and outbound from co-defendant GDB’s messaging system servers. Particular attention to the following definition of extract key-words needs to be exercised: a) identification of Rodriguez by different variations of her name; b) designation of pejorative and derogatory terms typically used to demean persons according to their age and gender (including but not limited to phrases such as: vieja, nena, arrugas, anos, edad, etc.); c) designation of phrases which could be referring to the current and past litigations, and which could suggest retaliatory animus or activities (including but not limited to phrases such as: demanda, caso, testigos, demandada, plaintiff, etc.); d) designation of record custodians to include all co-defendants, and other unnamed GDB employees known to tease, insult and taunt Rodriguez based on her physical appearance and age….

Id. at *6-*7. Defendant producer GDB objected on the basis of overbreadth, and argued “that the requests by Plaintiffs are likely to produced hundreds if not thousands of documents which will include irrelevant, confidential and potentially privileged information.” Id. at *7. In a report commissioned at the court’s request, a consultant estimated the cost of production at $35,000.

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Specificity in Unduly Burdensome ESI Production Motions

Specificity in Unduly Burdensome ESI Production Motions

Cartel Asset Management v. Ocwen Financial Corp., 2010 U.S. Dist. LEXIS 17857 (D. Colo. Feb. 8, 2010)

The dispute involved a misapropriation of trade secrets, breach of contract and fraud claims and at the conclusion of the trial, the jury found for Cartel and against Defendant Ocwen Federal Bank FSB awarding compensatory damages of $ 4,900,000 and punitive damages of $ 3,900,000. The jury also found in favor of Cartel and against Defendant Ocwen Technology Xchange on the claims of breach of contract and fraud, and awarded nominal damages of $ 1 and actual and punitive damages of $ 520,000, respectively.

The District Court Judge, Judge Figa ordered a new trial on the issue of damages because “There was no proper nexus between the amounts awarded and the credible evidence in the case as to damages consistent with the three claims at issue.”

Discovery was reopened as to the issue of damages and Defendants objected to several of Plaintiffs’ interrogatories and requests for production on the grounds that the ESI sought was not reasonably accessible because of undue burden or cost. The court noted that Defendants bore the burden of persuasion, which “cannot be sustained with bald generalizations.” Producers must “present details sufficient to allow the requesting party to evaluate the costs and benefits of searching and producing the identified sources.” Id. at *44.

Defendant’s SVP of Sales and Marketing was responsible for gathering responsive information and claimed that “the process of producing responsive information ‘would affect our profitability and ability to serve our clients.’” Id. at *46. The court analogized this statement as “the e-discovery equivalent of an unsubstantiated claim that the ‘sky is falling.’” Id. The declarant’s statement lacked “specific information indicating how the Ocwen Defendants store electronic information, the number of back-up or archival systems that would have to be searched in the course of responding to Plaintiff’s Second Requests, or Defendants’ capability to retrieve information stored in those back-up or archival systems.” Id. at *45.

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Third party and requestor ordered to share costs of production from database created from backup tapes

Third party and requestor ordered to share costs of production from database created from backup tapes

Universal Delaware, Inc. v. Comdata Corp., 2010 U.S. Dist. LEXIS 32158 (E.D. Pa. Mar. 31, 2010)

Plaintiff voluntarily dismissed a third party without prejudice reserving a right to amend and rename the third party, while tolling the statute of limitations. The parties stipulated that the third party would preserve relevant evidence, respond in good faith to reasonable discovery requests, and would not object to discovery requests as a non-party for the purpose of delaying production past the deadline for amending the complaint.

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