[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
I have never heard of a “destruction/unavailable” log; however, in the comprehensive – indeed, exhaustive – decision of Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711 (C.D. Ca. Sep. 30, 2024), plaintiff Leprino Foods moved to compel a defendant, Center for Surgery at Bedford, to produce one. The motion was granted.
Leprino Foods privately paid for employee health expenses. It alleged that various surgery centers were engaged in fraud. The Fourth Amended Complaint named “eighteen Defendants: the three surgery centers, two former employees, eleven doctors, an entity that provides administrative/staffing services to at least one of the surgery centers, and an individual who controls the finances of two of the surgery centers.” Id.[1]
Plaintiffs served a request for production of documents on Bedford. The court wrote that:
The Document Requests called for Bedford to produce documents in a specified format consistent with the Stipulated Protective Order and the E-Discovery Stipulation and to provide specified information regarding responsive documents that were destroyed, lost or otherwise unavailable (“destruction/ unavailable log). (Bowles Ex. A).
Id. at *4 (emphasis added).
Bowles Ex. A is not included in the court’s decision.
In conjunction with an effort to resolve that and a number of other discovery disputes, the plaintiffs’ counsel emailed Bedford’s counsel asserting failure to provide the requested “destruction/unavailable” log. Id. at*6.
Eventually, a motion to compel was filed. In part, the plaintiffs sought to compel Bedford to “produce a destruction/unavailable log consistent with the instructions in the Document Requests.” Id. at *12 (emphasis added).
The court wrote that:
Plaintiffs also assert that Bedford has failed to produce a “destruction/unavailable log” as required by the instructions in the Document Requests… and argues that Bedford should be required to do so…. Bedford does not directly address this argument but does essentially represent that it has never had documents responsive to a couple of Document Requests….[2]
Id. at *13 (emphasis added).
The court ruled:
The Motion to Compel is granted to the extent it seeks an order compelling Bedford to produce a destruction/unavailable log consistent with the instructions in the Document Requests and Defendant Bedford is ordered to do so.
Id. (emphasis added).
The Motion to Compel is granted to the extent it seeks an order compelling Bedford to produce a destruction/unavailable log consistent with the instructions in the Document Requests and Defendant Bedford is ordered to do so.
Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711, at *13, (C.D. Cal. Sep. 30, 2024).
Instruction No. 4 in the document request stated:
In the event that any DOCUMENT or COMMUNICATION called for by these requests has been destroyed, lost, discarded, or otherwise disposed of, or is otherwise unavailable, such DOCUMENT or COMMUNICATION is to be identified as completely as possible, including, without limitation, the following information: date of disposal; manner of disposal; reason for disposal; person authorizing the disposal; and person disposing of the DOCUMENT or COMMUNICATION.
See Pacer, Case 2:22-cv-07434, ECF 349-1; 2024 WL 448871, 1 at *4.
There were 37 RPD’s.
I have always objected to any similar discovery request in an RPD for the following reasons.
First, Fed.R.Civ.P. 34(b)(2)(A) states: “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection.” Accord Leprino Foods, 2024 WL 448871, at *9.
In my opinion, destruction or unavailability is not an “objection” within the terms of that Rule. Instead, a litigant must produce only what is in its possession, custody, or control, absent a proportionality or other recognized objection.[3]
Second, Fed.R.Civ.P. 26(b)(5)(A) requires a description – commonly in the form of a privilege log – of materials withheld as (1) privileged or (2) as trial-preparation material.
In my opinion, that Rule does not authorize nor require a “destruction/unavailability” log.
Third, the extent of the information requested in Instruction No. 4 may present proportionality issues.
However, there may have been an agreement in Leprino Foods to produce this log. A prior decision in the case states that plaintiffs contended that, if defendant “had not retained such documentation, he should include it on the destruction/ unavailable log in compliance with the E-Discovery Stipulation….” Leprino Foods Co. v. Avani Outpatient Surgical Ctr., Inc., 2024 WL 3915897, at *4 (C.D. Cal. May 6, 2024)(emphasis added).
Parties certainly could agree to produce a destruction/unavailability log.[4] However, the most recent Leprino Foods decision repeatedly states that the log was requested in the instructions to the RPD’s. It does not refer to an ESI Protocol or any agreement authorizing the request or requiring such a log. Further in ECF 349, the plaintiff states that: “The Motion seeks… a destruction/unavailable log in compliance with the Request’s instructions….” [emphasis added]. It states that: “Bedford’s production also failed to comply with Request Instruction 4 – which provides the method for identifying documents that are unavailable or destroyed….” [emphasis added]. In my review of ECF 123, the Stipulation Regarding E-Discovery, I found no provision similar to Instruction 4 of Bedford’s RPD’s.
From these facts, it does not seem that defendant Bedford agreed to produce such a log. However, it does not appear that Bedford objected to the instruction.
I did a quick Westlaw search for “destruction /s unavailable /s log” and found no other State or federal case discussing such a log.
So, is it a good idea to request such a log? Or, to agree to produce one?
First, as to requesting one, in my opinion any such request would be made without any Rules-based authority. I would object to it. And, especially here, the request is in my view onerous because of the extreme detail it requests – “such DOCUMENT or COMMUNICATION is to be identified as completely as possible, including, without limitation, the following information: date of disposal; manner of disposal; reason for disposal; person authorizing the disposal; and person disposing of the DOCUMENT or COMMUNICATION.”
Second, as to an agreement, it would clearly be permissible; however, I don’t understand how such a log could be reliably produced. How does a litigant accurately describe what “has been destroyed, lost, discarded, or otherwise disposed of, or is otherwise unavailable…?”
Is a litigant required to disclose that it “lost” a thumb drive? Would a litigant know that it “lost” an email? And, isn’t “otherwise unavailable” generally (albeit not entirely) subsumed by “not reasonably accessible because of undue burden or cost,” under Rule 26(b)(2)(B)? Of course, if there was a valid[5] information governance policy that provided for destruction after X months, that destruction information could be provided. But, if there was a valid information governance policy,[6] how useful is it to generically disclose that all email older than X months was destroyed?
Further, I question the need for a “destruction/unavailable” log in light of the court’s multiple orders that Bedford disclose its search methodology. The court wrote: “Notwithstanding Bedford’s representations in its responses, given the history of this matter and outstanding questions, the Court grants the Motion to Compel to the extent it seeks an order directing Bedford to describe in detail its search methodology and Bedford is directed to produce a declaration corresponding to the same so that there is a better basis to assess whether Bedford’s search for responsive documents/information satisfies the requisite reasonable diligence standard and comports with the E-Discovery Stipulation.” 2024 WL 4488711, at *13. It ordered that “as indicated above, Bedford shall produce a declaration describing in detail its search methodology and shall also provide a supplemental response consistent with its representation above and which reflects that it has not withheld any responsive documents in its possession, custody or control.” Id. at *24, passim.
At bottom, I would think long and hard before voluntarily undertaking to provide a log of ESI that “has been destroyed, lost, discarded, or otherwise disposed of, or is otherwise unavailable….” And, I would think even harder before agreeing to provide the detailed information requested in Leprino Foods’ Instruction 4.
That said, if I became aware of a potential spoliation issue, I would seriously consider a Damage Control Method (May 13, 2021). As Phil Favro, Esq., has written, there are benefits to promptly disclosing such a problem to an opponent. Id., quoting P. Favro, “New Federal Cases Spotlight 2021’s Key Trends in E-Discovery” (Law.com May 13, 2021); see also Is There a Duty to “’Fess Up?” (Aug. 15, 2022); cf. Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022); Candor Pays Off When It Comes to Alleged Spoliation: Notice + Accrual = Claims Bar (Apr. 6, 2023).
The parties’ history, which is set out in detail above, reflects that Plaintiffs’ counsel repeatedly tried to get discovery from Bedford and was met by delays, missed deadlines, and the apparent absence of any substantive written response to its multiple detailed meet and confer letters or provision of requisite logs and supplemental responses….
Leprino Foods Co. v. Avani Outpatient Surgical Center, Inc., 2024 WL 4488711, at *37, (C.D. Cal. Sep. 30, 2024).
The following may illuminate the Leprino Foods court’s analysis: “The parties’ history, which is set out in detail above, reflects that Plaintiffs’ counsel repeatedly tried to get discovery from Bedford and was met by delays, missed deadlines, and the apparent absence of any substantive written response to its multiple detailed meet and confer letters or provision of requisite logs and supplemental responses…. [S]uffice to say, Bedford appears to have operated at its own less than urgent pace, and Plaintiffs were not required to have endless patience. In short, the record above documents that Plaintiffs attempted in good faith to obtain the requested discovery without court action and that Bedford’s delay in providing such discovery was not substantially justified.” Id. at *37.
Cooperation is always prudent.[7]
Notes
[1] The cited September 30th opinion was one of three decisions. A “destruction/unavailable” log was also ordered in a January 4th decision. Leprino Foods Co. v. Avani Outpatient Surgical Ctr., Inc., 2024 WL 650434, at *5 (C.D. Cal. Jan. 4, 2024). A different defendant (Babak Moeinolmolki) was involved in that decision. That defendant had waived all objections and also failed to respond to the motion to compel. Id. at *1, 5. Another defendant (Charles K. Neal) was involved in the May 6th decision, Leprino Foods Co. v. Avani Outpatient Surgical Ctr., Inc., 2024 WL 3915897 (C.D. Cal. May 6, 2024). The May 6th decision was only a “tentative” order. There, the court wrote that it was “inclined” to deny the request to compel a “destruction/unavailable” log because a log had been provided and its sufficiency had not been satisfactorily challenged. Id. at n. 20.
[2] “Never had” is, in my view, different from “destruction/unavailable.”
[3] Of course, the standard applicable to the “possession, custody, or control” requirement varies. See Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022). The Leprino Foods court follows the “legal right” standard. 2024 WL 448871, at *9.
[4] A different defendant (Neal) did, in fact, agree to produce a “destruction/unavailable” log. Leprino Foods Co. v. Avani Outpatient Surgical Ctr., Inc., 2024 WL 3915897, at *3 (C.D. Cal. May 6, 2024). Neal produced a log and later agreed to supplement it. Id. at *4, 5. A challenge to the sufficiency of it was tentatively rejected. Id. at n. 20
[5] See Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? (Aug. 22, 2024).
[6] Id.
[7] The author of this blog is not related to counsel of record for Bedford in this case, Bruce A. Berman, Esq.
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