[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In one of the opening paragraphs of In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293, at *1 (N.D. Cal. Feb. 20, 2024), the court wrote:
At the hearing, the Court expressed its disappointment as to the excessively large number of disputes regarding ESI issues that remained, as well as the lack of specificity in the Parties’ briefing and confusing nature of the competing redlines on those disputes. For that reason, the Court ordered the Parties (including a person most qualified on technical ESI issues from each of their respective ESI vendors) to meet and confer regarding their disputes concerning the entry of an ESI Protocol by December 29, 2023…. The Court further ordered the Parties to promptly submit a joint chart regarding the top ten ESI issues that remained in dispute after the Parties’ meet and confer (if any), along with the Parties’ respectively proposed language addressing each such ESI issue. [emphasis added].
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 1786293, at *1 (N.D. Cal. Feb. 20, 2024).
The parties submitted a 14-page chart. Subsequently, they resolved two of the issues.
The court wrote: “The Court has broad authority and discretion to assist the Parties in resolving ESI disputes.”
In my words, this means that, if the parties don’t or can’t agree, the court will enter an order directing them to include the court’s language in an ESI Protocol. As the Hon. Andrew J. Peck wrote in another context: “That left the Court in the uncomfortable position of having to craft a keyword search methodology for the parties, without adequate information from the parties (and Hill).” William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009).
In “assisting” the parties, the court wrote: “An ESI protocol must be specific or it doesn’t mean anything.” [internal quotations and citations omitted].
Social Media Adolescent Addition’s 8 lessons involve detailed ESI Protocol provisions on topics such as “modern attachments,” search methodologies, hit reports, search terms, TAR, redaction, databases and structured data, email threading, and deduplication.
Several of these will be the topics of forthcoming blogs.
There were also several comments by the court that counsel never want to hear:
- Be careful what you ask for: “Plaintiffs requested this language and thus Plaintiffs cannot be heard to complain later about receiving a large volume of system or junk files (and should not be expected to argue for extensions of the case or discovery schedule on this basis). By arguing for this language, Plaintiffs knowingly undertook the risk that they may receive a large volume of system or junk files as a result.” [emphasis added].
- Courts can order parties to cooperate: “The Court is disappointed by the lack of communication between the Parties on this issue. As indicated at the DMC, the Parties’ counsel expressed willingness to meet and confer further and attempt to reach agreement on this issue. The Court therefore ORDERS the Parties to complete their meet and confers on this issue by the deadlines set forth in the Conclusion of this Order.”
- Thoughtful drafting is important: “Plaintiffs’ proposed language raises the risk of delay and invites continuing, ongoing disputes over methodology and search terms.”
- Cooperation involves disclosures and counter-proposals: “This dispute highlights a deficiency by the Parties in their meet and confers. Throughout all the meet and confers, Defendants argued that Plaintiffs’ proposals were ‘inaccurate’ or did not necessarily align with the capabilities of their respective dethreading tools, but Defendants never told Plaintiffs what those dethreading tools are…. Unfortunately, Defendants did not propose any alternate language that would address Plaintiffs’ concerns or attempt to craft language that would balance both Parties’ concerns. Rather, Defendants’ proposal unhelpfully omits any alternative proposed guidelines or agreed language on what constitutes a new thread or not.” [emphasis added].
The Social Media Adolescent Addiction decision is well-thought out and important.
One of many key takeaways is: “An ESI protocol must be specific or it doesn’t mean anything.” Please stay tuned for other important lessons.
Some of the subsequent decisions in that ongoing case may also be discussed in future blogs: For example: “The Court finds that the basic identifying information sought by the PI/SD Plaintiffs relating to Defendants’ litigation holds (i.e., the names and titles of the employees who received hold notices and the dates that the notices were issued) is not privileged.” In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation This Document Relates to: All Actions, 2024 WL 1808607, at *2 (N.D. Cal. Apr. 25, 2024).
Further the list of persons who received litigation holds is not, itself, work product because disclosing that list does not disclose any of the analyses, bases, or criteria used by counsel to create that list. Rule 26(a)(1)(A)(i) requires counsel to provide a list of individuals likely to have discoverable information that the party may use to support its claims and defenses, and that list is not considered work product even though it directly implicates the party’s claims and defenses.
In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation This Document Relates to: All Actions, 2024 WL 1808607 (N.D. Cal. Apr. 25, 2024).
The court wrote: “The Court likewise finds unpersuasive Defendants’ attempts to distinguish case law on the grounds that disclosure of hold notice recipients’ names and titles and the dates that the hold notices came into effect is only permitted where document preservation issues are in dispute. If, as Defendants concede, litigation hold recipients’ basic identifying information is not privileged in the context of a preservation dispute, then there is no legal basis for holding such information privileged in the context of other disputes. Either a document is work product protected from discovery, or it is not.”
It reasoned: “This basic information is exactly the same information which would appear on a privilege log for withheld work product, if the Court were to require the Parties to provide privilege logs of documents which post-date the Complaint in this matter…. Further the list of persons who received litigation holds is not, itself, work product because disclosing that list does not disclose any of the analyses, bases, or criteria used by counsel to create that list. Rule 26(a)(1)(A)(i) requires counsel to provide a list of individuals likely to have discoverable information that the party may use to support its claims and defenses, and that list is not considered work product even though it directly implicates the party’s claims and defenses.”
Thanks to Phil Favro for mentioning this case.
