January’s Notable Cases and Events in E-Discovery

[Editor’s Note: This article was first published January 18, 2023 and EDRM is grateful to Robert Keeling, Chair of the EDRM Global Advisory Council and our Trusted Partner, Sidley, for permission to republish.]

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

1. a ruling from the U.S. District Court for the Southern District of California denying the Defendants’ motion to compel Plaintiff to disclose information about the sources, methodology, and search terms used to collect electronically stored information (ESI) from one of its custodians
2. an order from the U.S. District Court for the Eastern District of North Carolina overruling the Defendants’ objections based on the “apex doctrine” and ordering Plaintiffs to add their former president as an ESI custodian
3. a decision from the U.S. District Court for the District of Massachusetts ordering Plaintiff to produce documents in the possession of a vendor, finding that the documents were within Plaintiff’s possession, custody, or control
4. an opinion from the U.S. District Court for the Middle District of Florida compelling the Defendant to run specific search terms but declining to compel the Defendant to disclose its search history for the searches it had already conducted

1. A ruling from the U.S. District Court for the Southern District of California denying the Defendants’ motion to compel Plaintiff to disclose information about the sources, methodology, and search terms used to collect ESI from one of its custodians.

In ImprimisRx, LLC v. OSRX, Inc., No. 21-cv-1305-BAS-DDL, 2022 WL 17824006 (S.D. Cal. Dec. 19, 2022), U.S. Magistrate Judge David D. Leshner addressed the Defendants’ motion to compel Plaintiff to disclose the sources, methodology, and search terms used to collect ESI from Plaintiff’s president.

Magistrate Judge Leshner first stated that “[i]n cases involving voluminous amounts of ESI and/or numerous custodians, parties frequently agree, at the outset, to exchange ESI search terms.” Id. at *1 (quoting Terpin v. AT&T Inc., No. CV 18-6975-ODW (KSx), 2022 WL 3013153, at *5 (C.D. Cal. June 13, 2022)). He noted that the court’s ESI Checklist for the Rule 26(f) Conference, which was designed to promote collaborative dialogue between the parties and facilitate the efficient collection and production of ESI discovery and avoid disputes, specifically directs the parties to meet and confer at the outset of the case regarding, among other things, “[t]he search method(s), including specific words or phrases or other methodology, that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery.”

Magistrate Judge Leshner explained that counsel for both parties had affirmed they did not meet and confer regarding the search terms that Plaintiff would use to locate responsive documents, including emails, in its repository of approximately two million documents, which “likely resulted in otherwise avoidable litigation.” However, Plaintiff’s counsel confirmed that the repository was searchable, and he ordered the parties to meet and confer regarding search terms for documents responsive to Defendants’ requests for production, noting that he “expect[ed] the parties’ good faith efforts to agree on appropriate search terms that will narrow (if not eliminate) their disputes and will eliminate the perceived need for another motion such as this one.” Id. at *2.

Magistrate Judge Leshner next addressed Defendants’ request to compel Plaintiff to disclose the sources, methodology, and search terms used to collect emails and other documents from Plaintiff’s president, John Saharek. Magistrate Judge Leshner stated that “[d]iscovery into another party’s discovery process is disfavored” and “requests for such ‘meta-discovery’ should be closely scrutinized in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” He noted that courts generally will permit such discovery only “where there is some indication that a party’s discovery has been insufficient or deficient.”

Magistrate Judge Leshner explained that the considerations relevant to a request to compel disclosure of search terms used by an opposing party to identify responsive documents include (1) whether the request is made prior to the collection and production of responsive documents and (2) if the request for search terms is made after production, whether the party seeking disclosure has identified some deficiency or insufficiency of the responding party’s production. But he further explained that “[t]he analysis changes where a party seeks post-production disclosure of search terms used by the opposing party to identify responsive documents.” He stated that “there is no fundamental discovery requirement that a party provide its ESI search terms in litigation,” and postproduction “discovery on discovery” of search terms generally is warranted only on a showing that a party’s production has been “insufficient or deficient.”

Magistrate Judge Leshner found that Defendants failed to show a deficiency in Plaintiff’s collection, review, and production of documents in Saharek’s possession. Defendants pointed to Saharek’s deposition testimony, where he testified that he was not aware his emails were collected. But Plaintiff provided a declaration by its information technology director that he directly supervised and had knowledge of actions taken by the company’s former network security supervisor to collect Saharek’s emails, which were discussed with Plaintiff’s in-house counsel and subsequently transferred to Plaintiff’s counsel. In light of this, Magistrate Judge Leshner found that Defendants had not contradicted Plaintiff’s assertion that it collected Saharek’s emails and produced responsive, nonprivileged emails.

Because Defendants had not shown that Plaintiff’s collection and production of Saharek’s emails was “insufficient or deficient,” Magistrate Judge Leshner declined to compel Plaintiff to produce the search terms it used to locate Saharek’s emails that were responsive to Defendants’ requests for production. Id. at *3.

2. An order from the U.S. District Court for the Eastern District of North Carolina overruling the Defendants’ objections based on the “apex doctrine” and ordering Plaintiffs to add their former president as an ESI custodian.

In Page v. Bragg Communities, LLC, No. 5:20-CV-336-D, 2022 WL 17724407 (E.D.N.C. Dec. 15, 2022), U.S. Magistrate Judge Robert B. Jones Jr. addressed a motion to compel the Defendants to make their former president an ESI custodian in the face of Defendants’ objections based on the “apex doctrine.”

In this case, Plaintiffs who were military personnel and with their families were living in privatized military housing at Fort Bragg, North Carolina, brought claims against Defendants related to the quality and maintenance of that housing. Id. at *1. 

During discovery, Plaintiffs brought a motion to compel Defendants’ past president, John Picerne, as an additional custodian for search-term-based discovery. Id. at *2. Defendants argued that Picerne was an “apex custodian,” and Plaintiffs had not made a compelling showing that all of the lower-level designated custodians were insufficient to capture the necessary information. Defendants also argued that Fort Bragg is only one of 28 installations operated by Defendants and pointed to deposition testimony showing that Picerne was not directly involved with Fort Bragg housing or intimately involved in setting company policy regarding the issues in this case. Id. at *3. Defendants noted that there were 150 individuals with day-to-day responsibilities at Fort Bragg, many of whom were already custodians, and that Picerne’s communications would necessarily be captured in the documents produced by those other custodians. Finally, Defendants claimed that seeking ESI from Picerne would be unduly burdensome, cost prohibitive, and harassing when balanced against the scope of Plaintiffs’ claims.

Plaintiffs argued that Picerne founded certain of the Defendant companies and that he made public statements through interviews and congressional testimony regarding the housing issue at Fort Bragg and other installations on their behalf, showing that Picerne had independent involvement and communications going to relevant issues that may not be captured by searches of other custodians. Id. at *2. Plaintiffs also questioned whether the apex custodian doctrine has been adopted in the Fourth Circuit and argued that Defendants failed to demonstrate that adding Picerne as a custodian would be an undue burden.

Magistrate Judge Jones began his analysis with the general standards applicable to discovery disputes, noting that relevancy under Rule 26(b)(1) “has been broadly construed to encompass any possibility that the information sought may be relevant to the claim or defense of any party.” He further explained that the court has “substantial discretion” to grant or deny motions to compel discovery and that the party seeking the court’s protection from responding to discovery “must make a particularized showing of why discovery should be denied, and conclusory or generalized statements fail to satisfy this burden as a matter of law.”

Magistrate Judge Jones stated that he was “not convinced that the apex custodian doctrine has been adopted in the Fourth Circuit or, in any event, that it is necessary to the resolution of this matter.” He quoted from a prior decision explaining that the Fourth Circuit has not adopted the doctrine, which typically applies only to protect senior executives from attending costly and distracting depositions rather than from merely collecting and producing documents. Id.(quoting Blankenship v. Fox News Network, LLC, No. 2:19-CV-00236, 2021 WL 2345972, at *3 n.5 (S.D.W. Va. June 8, 2021).

Using the standard set forth in Fed. R. Civ. P. 26(b), Magistrate Judge Jones found that Defendants had not sufficiently demonstrated that Picerne is unlikely to possess information relevant to Plaintiffs’ claims or that including Picerne as a custodian would be unduly burdensome or otherwise improper. Id. at *3. Magistrate Judge Jones noted that Defendants’ senior vice president of operations testified he was responsible for oversight and management of 13 installations but did not report directly to Picerne, and there was no testimony about Picerne’s being responsible for the day-to-day property management at Fort Bragg. But Magistrate Judge Jones stated that Plaintiffs did not merely speculate that Picerne was likely to have relevant information but rather cited evidence that Picerne made public statements, including in congressional testimony, specific to Fort Bragg and the types of issues raised in Plaintiffs’ claims. Accordingly, Magistrate Judge Jones found that adding Picerne to the ESI custodian list likely would render relevant information.

Magistrate Judge Jones also rejected Defendants’ argument that the discovery would be unduly burdensome, cost prohibitive, and harassing, finding that Defendants “presented nothing to support these assertions.” Under Rule 26(b)(2)(B), “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost,” and the party objecting to discovery has the burden of showing inaccessibility. Id. at *4. Magistrate Judge Jones noted that in prior cases parties had submitted evidence in the form of affidavits describing the cost of a requested search and that he had, in other cases, rejected unsubstantiated claims that discovery would pose an undue burden and was not proportional to the needs of the case. 

Accordingly, because Plaintiffs had shown that Picerne may have relevant information and Defendants had not substantiated their claims of burdens, Magistrate Judge Jones granted Plaintiffs’ motion to compel the designation of Picerne as an ESI custodian.

3. A decision from the U.S. District Court for the District of Massachusetts ordering Plaintiff to produce documents in the possession of a vendor, finding that the documents were within Plaintiff’s possession, custody, or control.

In Linhares v. Woods Hole, Martha’s Vineyard, et al., No. 1:20-cv-12035-IT, 2022 WL 17736800 (D. Mass Dec. 16, 2022), U.S. District Judge Indira Talwani addressed Plaintiff’s motion seeking to compel one of the Defendants to produce documents in the possession of a third-party vendor.

This case involved claims of personal injury against several defendants, including the Nantucket Steamship Authority, for alleged injuries Plaintiff sustained when he slipped on a stairwell while employed by the Steamship Authority as a crew member on a ship. Id. at *1. During discovery, Plaintiff requested records of the order, purchase, acquisition, installation, modification, replacement, and/or repairs related to the nonslip tread used on the stairwell. The Steamship Authority refused to produce these documents on the ground that they were in the possession of a third-party shipyard vendor that it used to perform periodic refurbishments of the ship. Id. at *4.

Plaintiff filed a motion to compel Plaintiff to produce records related to the tread, arguing that even if such records were in the possession of the shipyard, those records were in the Steamship Authority’s “possession, custody, or control” under Rule 34(a). The Steamship Authority responded that while it could make a demand for the tread records from the shipyard, such a demand would not constitute control under Rule 34(a) and that Plaintiff could subpoena the documents from the shipyard directly.

Judge Talwani began her analysis of this issue by noting that for purposes of Fed. R. Civ. P. Rule 34(a)(1)(A), “the concept of ‘control’ has been construed broadly” and that a document is “under a party’s ‘control’ when that party has the right, authority or ability to obtain the document upon demand.” Id. at *5. While the Steamship Authority refuted that it had the “right” to demand the records at issue, Judge Talwani found that nothing in the record suggested that the Steamship Authority — as a customer of the third-party shipyard servicing the ship — did not have the practical ability to obtain the service-related tread records. 

Judge Talwani also rejected the Steamship Authority’s argument that it was under no obligation to produce the records because Plaintiff could subpoena the documents from the shipyard. She explained that the Second Circuit case relied on by the Steamship Authority for this point, Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130 (2d Cir. 2007), did not support the argument because the court in that case noted that “if a party has access and the practical ability to possess documents not available to the party seeking them, production may be required.”

Judge Talwani granted Plaintiff’s motion and ordered the Steamship Authority to produce the tread-related records.

4. An opinion from the U.S. District Court for the Middle District of Florida compelling the Defendant to run specific search terms but declining to compel the Defendant to disclose its search history for the searches it had already conducted.

In United States Equal Employment Opportunity Commission v. Qualtool, Inc., No: 5:21-cv-229-ACC-PRL, 2022 WL 16963829 (M.D. Fla. Nov. 16, 2022), U.S. Magistrate Judge Philip R. Lammens addressed a motion by the plaintiff United States Equal Employment Opportunity Commission (EEOC) to compel Defendant to run searches with specific search terms and to disclose its search history.

In this employment discrimination case, the court had previously denied a motion brought by the EEOC to compel Defendant to (1) produce responsive documents in a native, usable format organized in the manner requested by EEOC, (2) provide an affidavit listing ESI repositories, and (3) cease unsupervised ESI self-collection and conduct supervised searches and had ordered the parties to meet and confer on these issues. Id. at *1. However, the parties were unable to resolve the EEOC’s issues with Defendant’s ESI searches. On the discovery deadline, the EEOC filed a renewed motion to compel Defendant to rerun computer searches with specific search terms, covering six email accounts, and using agreed-on software for the searches.

In addressing the EEOC’s renewed motion, Magistrate Judge Lammens first laid out the relevant rules under F.R.C.P. 37 surrounding motions to compel, including that the discovery requested must be proportional to the needs of the case and that objections may not be conclusory and boilerplate and “fail to explain the precise grounds that make the request objectionable.” Id. at *1-2 (internal quotations omitted).

Magistrate Judge Lammens then moved to a discussion of the issues surrounding the EEOC’s search requests using Outlook and Windows File Explorer computer software. Id. at *3. Based on meet and confers, the parties agreed that Defendant would search the entirety of the ESI documents using terms provided by the EEOC, and Defendant provided 10 email addresses that may be repositories for the searches. After further meet and confers, Defendant told the EEOC it would run only search terms covering five of the EEOC’s first requests for productions and would search only two computers and two email addresses. After these searches failed to uncover responsive documents, the parties continued to meet and confer, during which Defendant never confirmed that it ran the searches using the computer software agreed on by the parties.

Magistrate Judge Lammens explained that while “the Sedona Principles caution that the parties must cooperate to craft search terms that will effectively capture all relevant information without being too burdensome, this cooperation must be in good faith, consistent with the local rules.” Id.at *4. “When a party has limited the search terms following conferral according to the opposing party’s input, that has been found sufficient to compel the opposing party to run the search.”

According to the EEOC, its suggested search terms were “tailored to capture the discriminatory policy at issue, using the exact terms that are used in Defendant’s statement of position submitted to the EEOC during the administrative investigation” and otherwise relevant to the case. Additionally, the EEOC requested that Defendant run the search terms on six email accounts, only two of which Defendant had searched to date, and five computers. The EEOC argued that several email accounts were relevant because they belonged to company officers who were deposed or listed on the parties’ disclosures as having relevant information, and another was the email of Defendant’s vice president. Finally, the EEOC designed the search terms to be solely compatible with Outlook and Windows File Explorer, which Defendant had represented it had used when searching the email accounts and computers it had already searched. Id. at *5.

For these reasons, Magistrate Judge Lammens granted the EEOC’s motion to compel “to the extent that the six search terms will be run on the six email accounts and five computers, using Outlook and Windows File Explorer, respectively.”

Magistrate Judge Lammens then turned to EEOC’s request to compel Defendant to produce its Outlook search history for the searches it conducted to determine whether the searches were done using proper terms and syntax. Magistrate Judge Lammens found that this request was “unnecessarily burdensome without a specific allegation of misconduct” given that Defendant’s counsel represented in a hearing that the searches were properly conducted. He therefore denied this portion of the EEOC’s motion.LESS

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