November’s Notable Cases and Events in E-Discovery

[Editor’s Note: This article was first published December 4, 2024, and EDRM is grateful to Tom Paskowitz of our Trusted Partner, Sidley, for permission to republish. The opinions and positions are those of the author.]

This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:

1. A decision from the U.S. District Court for the Eastern District of New York denying a request for a technology-assisted review (TAR) protocol that would have required the parties to produce the documents deemed nonresponsive as part of their initial sample estimation sets
   
   
2. A decision from the U.S. District Court for the Northern District of California denying a request for a provision in the parties’ protocol governing electronically stored information (ESI) that would have required negotiation of search terms and specific search term and review validation methods and instead requiring the parties to disclose information and negotiate in good faith to resolve any disputes regarding validation methods
   
   
3. A ruling from the U.S. District Court for the Middle District of Pennsylvania refusing a forensic evaluation of a nonparty individual’s cell phone and finding it would not be proportional to require the Defendant to expand its search for ESI
   
   
4. An opinion from the U.S. District Court for the Southern District of Florida denying a request to add the Defendant’s chief executive officer (CEO) as a custodian based on considerations of proportionality

1. In In re Exactech Polyethylene Orthopedic Products Liability Litigation, No. 22-md-3044 (NGG)(MMH), 2024 WL 4381076 (E.D.N.Y. Oct. 3, 2024), U.S. Magistrate Judge Marcia M. Henry addressed competing provisions for the use of TAR 2.0 in the parties’ discovery protocol.

This multidistrict litigation involved claims that Plaintiffs were injured by certain products manufactured by Defendant Exactech.

At the outset of discovery, the parties submitted to the court several disputes including whether the applicable TAR 2.0 protocol in the parties’ ESI protocol should permit Plaintiffs to review nonprivileged documents coded as “non-responsive” during Exactech’s document review to ensure the responsiveness of those documents. Id. at *12. Magistrate Judge Henry noted that the parties’ competing TAR protocols were otherwise “nearly identical.”

But Plaintiffs proposed a provision in the ESI protocol providing that Exactech would “make available to Plaintiffs the nonprivileged documents coded as nonresponsive” in Exactech’s estimation sample (and provide a privilege log for any such documents Exactech claimed were privileged). Plaintiffs further proposed that the ESI protocol require the parties to meet and confer “[s]hould a disagreement arise regarding the responsiveness of certain documents within the sample.”

Plaintiffs argued that their proposal “efficiently explores the issue of Exactech’s responsiveness at the beginning of the production process instead of at the end.” Id. at *13. But Exactech disputed that Plaintiffs had a right to be involved in a producing party’s responsiveness.

At the outset of her analysis, Magistrate Judge Henry noted that Plaintiffs sought “discovery on discovery” and therefore “must provide an adequate factual basis to justify the discovery.” Relying on prior decisions in Kaye v. New York City Health & Hosps. Corp., No. 18-CV-12137 (JPO)(JLC), 2020 WL 283702 (S.D.N.Y. Jan. 21, 2020), and Hyles v. New York City, No. 10- CIV-3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016), she explained that courts “must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process.” She concluded that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

With respect to TAR, Magistrate Judge Henry explained that courts generally decline to intervene in a responding party’s decisions about how to use TAR unless the requesting party shows a specific deficiency in production or unreasonableness in the process. Id. (citing The Sedona Conference, TAR Case Law Primer, Second Edition, 24 Sedona Conf. J.1, 27–30).

Magistrate Judge Henry found that the parties had “largely agreed to a TAR protocol including detailed information regarding the collection criteria used and the culling and review process” and that “[t]his is sufficient information to make the production transparent.” She also noted that Plaintiffs’ position regarding review of nonresponsive documents was “wholly unsupported by the law.”

Finally, Magistrate Judge Henry rejected an argument that Exactech’s TAR implementation required oversight because Exactech was ordered to produce documents that were miscoded as privileged in another litigation. Id. at *14. She noted that Plaintiffs had not demonstrated any deficiencies in Exactech’s TAR protocol as applied in the current litigation but could raise any issues with the court if Plaintiffs later found deficiencies in Exactech’s production as a result of its improper application of the TAR protocol.

Accordingly, Magistrate Judge Henry adopted Exactech’s proposed TAR 2.0 protocol.

2. In Tremblay v. OpenAI, Inc., No. 23-cv-03223-AMO (RMI), 2024 WL 3638421 (N.D. Cal. July 31, 2024), U.S. Magistrate Judge Robert M. Illman addressed disputes regarding search terms and search term validation.

At the outset of discovery, the parties submitted several disagreements regarding the appropriate validation protocol for ESI review and discovery, including (1) whether a producing party should disclose its search terms before the review process (and whether input from the requesting party should be considered in determining search terms); (2) whether recall or elusion was the appropriate evaluation method for validating the efficacy of a search; and (3) whether Plaintiffs’ proposal of 98% +/-2% or Defendants’ proposal of 95% +/-5% was the appropriate confidence metric for sampling. Id. at *1.

Magistrate Judge Illman first addressed the parties’ dispute regarding search terms. Plaintiffs argued that a requesting party should have input into the search terms used by a producing party. Defendants opposed this request, arguing that “search term validation” was not required by the court’s model ESI orders and that “courts do not find that in the first instance, the receiving party has a right to examine and evaluate the way the production was made or require collaboration in the review protocol and validation process.” Id. (citing The Sedona Conference, TAR Case Law Primer, Second Edition, 24 Sedona Conf. J.1, 39 (2023)).

Magistrate Judge Illman found that “the disclosure of search terms is appropriate and reasonable” and ordered that a producing party would be required to disclose its terms. Id. at *2. However, he agreed with Defendants that a requesting party should not have input in determining search terms because that “raises the specter of too many future delays and disputes over methodology and search term formulation.”

As to search methodologies, Magistrate Judge Illman ordered that the parties’ ESI protocol would contain a provision requiring the parties to “adopt reasonable and proportionate methodologies to identify, search, collect, cull, review, and produce ESI as required under applicable legal standards.” He further ordered that the ESI protocol would recognize that “different data sets may implicate different methodologies to identify, search, collect, cull, review, and produce responsive and nonprivileged ESI” and would require the parties to “meet and confer in good faith regarding any potential disputes over their respective ESI productions.”

Finally, Magistrate Judge Illman turned to the Parties’ dispute regarding validation. He directed that the parties would be required “to disclose their evaluation method for validating the efficiency of searches as well as their method for identifying the confidence metric for their sampling.” Therefore, “in light of the need for efficient and effective discovery (as well as the prevailing legal standards),” Magistrate Judge Illman ordered that the parties’ ESI protocol would require each party to “take reasonable steps to validate its review process,” including “using quality control measures to determine whether its production is missing relevant ESI or contains substantial amounts of irrelevant ESI” and “make any necessary adjustments or corrections to its process.” 

In addition, Magistrate Judge Illman ordered that the parties’ ESI protocol would permit a requesting party to make reasonable requests for additional information regarding the validation methods used by the producing party and that the producing party would “disclose the level of end-to-end recall” (in other words, the percentage of responsive documents in the collection that were identified as responsive by the producing party’s methodology). Finally, he ordered that the parties’ ESI protocol would require the parties to meet and confer to resolve any disputes regarding validation, “including a reasonable discussion regarding the tool employed and the parameters used to obtain or calculate the level of recall.”

3. In Rheem v. UPMC Pinnacle Hospitals, No. 23-cv-75, 2024 WL 4494695 (M.D. Pa. Oct. 15, 2024), U.S. Magistrate Judge Martin C. Carlson addressed the standards for forensic evaluation of a nonparty’s mobile device and for the imposition of additional ESI searches.

In this workplace disability discrimination case, Plaintiff alleged that he began using CBD oils and gummies to treat pain after undergoing multiple medical procedures to alleviate a chronic spine condition. Id. at *1. Plaintiff further alleged that UPMC Pinnacle Hospitals (UPMC) knew about Plaintiff’s use of CBD products, which were legal and could occasionally yield positive drug test results, but nonetheless accused Plaintiff of being impaired and suspended his employment. Plaintiff claimed that UPMC also denied him the opportunity to participate in its Last Chance Agreement program, which was “routinely” offered to first-time minor drug and/or alcohol offenders, and then terminated Plaintiff’s employment.

Plaintiff alleged that the work-related justification for his termination was pretextual and that UPMC’s decision to terminate him was based on his medical condition in violation of the interference and retaliation provisions of the Americans with Disabilities Act and other workplace disability discrimination statutes.

During discovery, several disputes arose including with respect to a forensic examination of a cell phone and the scope of UPMC’s ESI searches.

With respect to the first issue, Plaintiff sought an order compelling a nonparty coworker, Robin Wible, to turn her personal cell phone over to UPMC so that UPMC could conduct a forensic examination of the phone for derogatory information relating to Plaintiff. Id. at *2. Plaintiff claimed that Wible initiated the report of his alleged drug use and that she “occasionally used her personal cell phone for business purposes.”

Magistrate Judge Carlson concluded that “considerations of privacy and practicality, along with relevance and proportionality, all caution against ordering a forensic review of this non-party’s personal cell phone.” Id. at *6. He recognized that “there is a uniquely intrusive aspect” to a “forensic review of the electronic media of a non-party,” which could include “the most intimate of personal details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.” Based on these concerns, Magistrate Judge Carlson explained that courts have recognized a need to “guard against undue intrusiveness” and to be “cautious in requiring” the forensic inspection of electronic devices in order to protect privacy interests, and “[m]ere suspicion” or speculation that a party may be withholding discoverable information is insufficient to support an “intrusive examination” of the party’s electronic devices or information systems. Id. (quoting Hespe v. City of Chicago, No. 13 C 7998, 2016 WL 7240754, at *4 (N.D. Ill. Dec. 15, 2016)).

Magistrate Judge Carlson concluded that caution was particularly important in this case because Wible’s phone was not backed up and relevant information was unlikely to exist on the phone, because there was no indication that Wible played any policy-making or decision-making role in Plaintiff’s termination, and because a forensic review of Wible’s personal cell phone would be both disproportionate and particularly invasive of her personal privacy. Id. at *7.

Magistrate Judge Carlson next turned to Plaintiff’s complaint that UPMC’s search terms for its ESI were too narrow, in particular because UPMC failed to include relevant terms such as “CBD,” “THC,” and “marijuana.” In response, UPMC argued that these terms were, in fact, used in the ESI search it conducted, and that search yielded more than 2,000 potentially relevant documents containing some 368,000 pages of material.

Magistrate Judge Carlson explained that “ESI searches are best performed in a collaborative fashion,” invoking The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J.1 (2018). In particular, he explained that the Sedona Principles identify “two specific, collaborative strategies” designed to “enhance the fairness and transparency of voluminous ESI discovery review,” which include the use of relevant search terms and ongoing sampling of data to assess the accuracy of search terms.

Magistrate Judge Carlson noted that the “collaborative efforts between the parties may have fallen short of the ideals expressed in the Sedona Principles” but concluded that UMPC’s search was adequate. Id. at *8. He explained that the lawsuit involved a “fairly straightforward and discrete series of allegations,” and that UPMC insisted it searched its ESI using the terms Plaintiff complained about. He found that absent a showing of deficiency in UPMC’s ESI search protocol, UPMC had “adequately captured potentially relevant electronically stored data.”

Accordingly, Magistrate Judge Carlson also denied Plaintiff’s request to expand UPMC’s ESI searches.

4. In Newman, et al. v. The Associated Press, No. 24-cv-20684, 2024 WL 4433465 (S.D. Fla Oct. 4, 2024), U.S. Magistrate Judge Marty Fulgueira Elfenbein addressed whether the rules of proportionality required Defendant to add its CEO as a custodian.

This litigation involved allegations that Defendant, The Associated Press, aided the October 7, 2023, attack on Israel by publishing pictures taken by freelancers affiliated with Hamas.

Earlier in discovery, the court had ordered Defendant to “provide Plaintiffs with a list of custodians which it searched in pursuit of the discovery materials sought by Plaintiffs” and provided the parties with a procedure to address any additional custodians requested by Plaintiffs. Id. at *1. After following the procedure, the parties disputed whether Defendant’s president and CEO, Daisy Veerasingham, should be added as a custodian.

In support of its motion to compel, Plaintiffs argued that Veerasingham had responsive documents because she appeared 21 times in Defendant’s privilege log and Defendant produced documents showing that Veerasingham was involved in issues relevant to the litigation. These included (1) a document discussing Veerasingham’s son doing work to vet a freelance photographer and alleged Hamas operative/sympathizer; (2) an update Veerasingham provided to Defendant’s board of directors in which she informed the board that she responded to a letter from U.S. Sen. Tom Cotton, Republican of Arkansas, inquiring into allegations that freelance photographers who contributed to Defendant’s coverage of the October 7 attack were colluding with Hamas; (3) an email chain in which Veerasingham discussed the statement Defendant would use in response to inquiries concerning Defendant’s association with freelance photographers in Gaza; and (4) an email chain in which an employee of Defendant’s reported to Veerasingham about the reputational risk Defendant carried due to its association with certain freelance photographers. Id. at *2.

Defendant argued that Veerasingham “had no direct involvement in any of the issues relevant to this case, and there is no relevant information to be gleaned from her documents beyond what is already available from the existing custodians.” In particular, Defendant argued that “as the President and CEO of an organization as large as Defendant’s, [Veerasingham] would not have been involved in either the sourcing or the decision to purchase the photographs taken by the freelance photographers.” Defendant countered Plaintiffs’ arguments based on specific documents by suggesting that Veerasingham merely “needed to become aware of the current state of Defendant’s relationship with the freelance photographers” named in the Plaintiffs’ complaint to respond and protect Defendant’s reputation. For these reasons, Defendant claimed that adding Veerasingham would be “overly burdensome and not proportional to the needs of Plaintiffs in the case.”

Magistrate Judge Elfenbein began her analysis with a description of Federal Rule of Civil Procedure 26(b), which permits a party to obtain discovery of “any matter, not privileged, that is relevant to the claim or defense of any party.” Id. at *3 (quoting Rule 26(b)). She noted that while Rule 26(b) is construed broadly, “it is not without limits” because discovery must also be “proportional to the needs of the case.” She explained that the parties’ claims and defenses determine the scope of permissible, relevant discovery and the party resisting discovery bears the burden of demonstrating specifically how the request is unreasonable or not relevant. If the party is able to do so, the proponent of the motion to compel must then prove the relevance of the requested discovery.

Magistrate Judge Elfenbein first addressed whether Plaintiffs had established that Defendant’s custodian list was inadequate. She explained that Defendant had initially designated 20 custodians, and Plaintiffs had identified three additional individuals based on a review of Defendant’s privilege log. But she found that Plaintiffs offered no other evidence to suggest that the method Defendant used to designate custodians was inadequate in any way and therefore concluded that Plaintiffs had failed “to show the inadequacy of Defendant’s designation process.” Id. at *4 (citing The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J.1, 17 (2018)).

Next, Magistrate Judge Elfenbein considered whether Plaintiffs had established that a search of Veerasingham’s documents “would provide unique relevant information not already obtained.” This inquiry focused on the documents identified by Plaintiffs, but Magistrate Judge Elfenbein concluded that they “fail[ed] to establish that [Veerasingham] has unique discovery material, a finding which weighs heavily against designating her as a custodian.” In particular, Magistrate Judge Elfenbein explained that while the documents reflected that Veerasingham was updated on relevant topics and approved certain relevant decisions, she “was not involved in the micro-level decision-making” and therefore none of the documents demonstrated that she possessed responsive documents “that would not be otherwise produced during Defendant’s search” of other designated custodians. Id. at *5.

Finally, Magistrate Judge Elfenbein concluded that a search of Veerasingham’s documents would not be proportional to the needs of the case. She pointed out that Veerasingham, as CEO of “a non-profit organization with over one thousand employees and a global footprint,” would possess “countless documents concerning Defendant’s global operations unrelated to the instant action.” Because Plaintiff had not demonstrated that Veerasingham was in possession of unique discovery documents, she would not “force Defendant to search through the countless documents in her possession.”

Accordingly, Magistrate Judge Elfenbein denied Plaintiff’s motion to add Veerasingham as a custodian.

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