Li. v. Merck Addresses: Trigger; Spoliation Discovery; and, Document Unitization

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025), the court addressed a number of discovery disputes in a lawsuit by a terminated employee against her former employer. I have written three detailed blogs about the case:

One important holding of Li is that, on the somewhat unique facts presented, the Court held that plaintiff’s consulting an attorney to find out her rights is not “necessarily” the same thing as contemplating or anticipating litigation for purposes of triggering the common-law duty to preserve. Ms. Li admitted that she was looking for a lawyer on December 12, 2022. She contended, however, that her duty to preserve did not arise until her employment was terminated on March 10, 2023. Ms. Li “says that she is a first generation immigrant who was entirely unfamiliar with her rights and that she sought legal consultation in an effort to understand her rights.”

In the first blog, I suggest that the Li court considered a subjective factor in an objective test. While Sedona correctly states that the test is “whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation,” I have some questions about the Li Court’s conclusion. What facts led Ms. Li to consult counsel at that time? It must have been more than mere academic curiosity about worker’s rights to cause her action. We do not know what was said to the lawyer (privilege?) or what the lawyer said to Ms. Li (privilege?). What if the lawyer said “you’ve got a great case, but you don’t have damages until you’re terminated?” What if the lawyer simply said, “even though I have not been retained, I think you have a duty to preserve?”

A second interesting aspect of Li is that the court permitted discovery relating to spoliation. It compelled Ms. Li to answer interrogatories asking if she or anyone else had deleted or destroyed any information requested in defendants’ discovery. For example, one interrogatory asked: “To the extent YOU deleted, destroyed, or threw away, directed anyone else to delete, destroy, or throw away, or are aware of anyone else deleting, destroying, or throwing away ANY DOCUMENTS called for by any of DEFENDANTS’ document requests, describe in detail when, why, and how such documents were deleted, destroyed, or thrown away.” This discovery on discovery was permitted without any predicate showing of any failure to produce responsive information. Cf. Court-Ordered Production of a “Destruction/Unavailable” Log (Oct. 18, 2024).

A third holding addressed “document unitization.” Defendants complained of pervasive unitization problems. “Document unitization” is the issue presented when a number of separate documents are combined as a single file, without natural breaks. If, for example, four separate documents are scanned as a single PDF, a search “hit” on any one of them will return all four of them, resulting in false positives that are a waste of time and resources.^[1]

Proper document unitization maintains the organizational structure of the original documents. It is logical and facilitates use in litigation support platforms. Improper unitization – jumbling a bunch of unrelated documents as a single large PDF – is an unsound practice.
Document Unitization (Aug. 10, 2021).

Litigation review software generally offers technological solutions to unitization problems. The Li court used sampling to evaluate the unitization complaint:

While the Court does not want to review Plaintiff’s entire document production, the Court would like to see a demonstration that the problems Defendants have identified are pervasive and that the issue is not just a couple of unfortunate examples. Accordingly, the Court ORDERS Defendants to file 200 to 300 pages of Plaintiff’s produced documents, in the form produced by Plaintiff, that illustrate the problems Defendants see in her document production.
Li v. Merck & Co., Inc., 2025 WL 429013 (N.D. Cal. Feb. 7, 2025).

Document unitization is an issue that could be addressed in a Rule 26(f) conference of the parties and an ESI Protocol. In the prior blog, I presented some suggested Protocol language.

The Li decision importantly addresses several issues that arise frequently.

Notes

[1] The term also applies to the opposite situation – where a single document is presented as multiple files. For example, a ten-page document may be produced as ten separate, single-page, files.

Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.

Author

Michael D. Berman

Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.
View all posts