#CaseoftheWeek Episode 48: Duty to Produce and Requirement for Production of Slack Messages

Episode 48 of Case of the Week is focused on Slack messages and the duty of a party to produce them as well as photographs and a YouTube watch list and the analysis of whether those documents are required for production. Kelly also shares some personal news to help encourage others on the importance of health screenings.

Good morning and welcome to our Case of the Week for December 7, 2021. My name is Kelly Twigger, and I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. I’m so happy to be here with you today and thank you so much for joining me.

It is hard to believe that we are coming to the close of 2021. We’ll have our Case of the Week rolling through December 21, so for two more weeks. Then we’ll take a break for the holidays.

Before we get started today, I wanted to take a minute to share some personal news.

Some of you are aware that in September I was diagnosed with colon cancer, While my prognosis is very good, and I plan to be around for a very long time, it’s going to be a long few months for me and my family as we wage this battle. I’m sharing this with you today for a couple of reasons to one to ask for your understanding and support as we move through this process for the next few months and to encourage you to share my story with your friends and family who need to get their colonoscopy.

Colon cancer is the number two leading cancer in the United States, and it is entirely preventable. The rumors that a colonoscopy is a painful procedure are completely wrong. It is a painless process that your insurance covers and what you probably have not heard from your doctor is that it is recommended for anyone who is age 45 and up, not 50. If I had known that information at age 45 instead of at age 50, I would not be talking to you about this today.

Please take the necessary steps to protect you and your family members by sharing my story and encouraging them to get their colonoscopy. You’ll see some posts for me encouraging folks to get tested and if you feel comfortable, please share them with your audiences. If we can stop one person from having to go through this journey, that is reason alone to share. I also want to thank my colleagues who stepped up in huge ways to help over the last few months, especially Doug Austin at eDiscovery Today, who filled in for me on Case of the Week at a moment’s notice, Joy Murao and her team at Practice Aligned Resources, my entire planning committee for the University of Florida E-Discovery Conference, and my team. Your support means the world.

That being said, let’s get to the business of the day.

As you know, each week in partnership with the Association of Certified E-Discovery Specialists, otherwise known as ACEDS, we select a case from the eDiscovery Assistant database that has some practical application that we want you to be able to take away as you go into your practice of discovery on a daily basis. You know the three things that we talk about each week—plan, plan, plan, document, document document are the first two. Those are both going to come into account in the decision that we’re going to discuss today.

As always, there are links to the decision that we’re discussing today, which is from Cleveland vs. The Behemoth, as well as the Magistrate’s decision. You can link directly to those decisions within eDiscovery Assistant and be able to review the case that we’re talking about.

If you are interested in signing up for a demo of eDiscovery Assistant, we do a regular demo on Thursday mornings for interested participants, and you can sign up for that on the website. You can also jump to the website to check out our 2020 Case Law Report, which we do in conjunction with Doug Austin at eDiscovery Today. We are currently working on our report for 2021.

We’re also planning to be at Legal Week in New York City, so if you’ll be there, please let us know so we can say “Hi.”

We’ve talked about before that in order to get to the district court following a Magistrate’s ruling on a discovery order, you have to use Rule 72. Rule 72 gives you 14 days to file an objection. What we’re going to see in this case today are some details that I think you need to pay attention to when you’re filing an objection that are a little bit overlooked in this case. I think probably the plaintiff is probably kicking themselves for overlooking those details.

Underlying suit here in Cleveland vs. The Bohemia really concerned allegations of a hostile work environment, sexual harassment, retaliation, wrongful termination and related claims arising from the plaintiff’s work for the defendant. The plaintiff is clearly no longer with the defendant. At this point, the plaintiff is unable to be able to gather information for its claim within the company and is completely reliant on the company to provide that information in discovery.

From timing perspective—that’s kind of our third principle, right, is always pay attention to the timeline—on December 23 of 2020, the defendant made what the court referred to as an untimely supplemental production that included multiple forms of evidence, including Slack chats (which were supplemental; they had already produced some Slack chats), photographs and records relating to the plaintiff’s performance, as well as emails and a YouTube watch list, all of which plaintiff alleged were responsive to their request for production. On January 11th, roughly 20 days after the defendants made this untimely production, the plaintiff filed a motion for evidence preclusion as a sanction based on the untimely of production of discovery.

Now, there’s no discussion of the timing in the district court’s ruling on this. If you look back at the Magistrate’s ruling, you can find that we’re really close to trial here. Essentially, what the plaintiffs are saying is “if you’d have given us this discovery today lot earlier, we would have been able to conduct depositions. We would have been able to dig into things a little bit more. There’s a lot here that you really prejudiced us by not giving us this information until it’s so late in the case.” That happened in January.

In May, the Magistrate Judge issued an order denying plaintiff’s motion for sanctions. Essentially, the Magistrate went through and looked at each of the types of information and determined whether they were substantially justified or harmless under Rule 37 as far as sanctions go. In doing so, the Magistrate considered both the timeliness and the responsiveness of the defendant’s supplemental production, including whether the defendant had a duty to supplement, and when such a duty arose. He found that the Slack messages were responsive to plaintiff’s requests for production and were not timely produced, and that the YouTube watch history and the photographs identified as trial exhibits were not previously produced and that some of those were not timely produced as supplements to the initial disclosures.

He then considered whether those failures to disclose fell under the exception to Rule 37(c)(1) allowing the information to be introduced if the party’s failure to disclose was substantially justified or harmless. Really, what you’ve got here is the interplay between Rule 26, obviously, which requires the production of relevant information, and Rule 37(c), which provides for sanctions for issue preclusion for failure to produce.

Now, the standard of review under Rule 72, which is how we are in front of the district court is really important to consider here. And the district court is reviewing the Magistrate’s decision as to whether or not it was clearly erroneous or contrary to law. As we know, that’s a pretty high standard. A lot of times we see these objections, and we see the court look at them even as we did in the Noom case. If you remember that one, it was about whether or not hyperlinks in emails are attachments. Even in the Noom case, we saw that the district court’s review of the Magistrate judge’s decision had to be in a clearly erroneous standard. That’s a high standard to meet, and it’s interesting to see how the Court applies that standard in this particular decision.

Based on that standard, any discretionary orders such as those granting or denying the imposition of sanctions and a discovery dispute, “will be overturned only if the district court is left with a definite and firm conviction that a mistake has been made.”

Now, the plaintiffs objected to the Magistrate’s decision on two grounds. First, they argued that the Magistrate’s order shifted the burden of proving substantial justification and or harmlessness to the plaintiff instead of on the defendant as Rule 37 requires. The second objection was that the order impermissibly allowed the defendant to introduce evidence that it will rely on at trial despite the plaintiff’s inability to depose witnesses or scrutinized basis of opinion regarding that evidence before trial.

That sort of sets our case up. What is the Court’s analysis here?

Well, the Court deals fairly swiftly with the burden arguments presented by the plaintiffs as their first point. Essentially, the Court finds that the Magistrate’s considerations of responsiveness went to the discovery that was required under Rule 26 and did not impermissibly shift the burden onto plaintiff because they really didn’t pertain directly to the question of substantial justification or harmlessness.

The second issue is where we really get into the individual crux of this case, right? The individual sources of ESI that were produced. The second issue is really whether the failure to produce this information in a timely fashion was justified or harmless, and that really comes from the intersection of Rule 26(e) that governs supplemental disclosures and responses, as well as FRCP 37 that addresses sanctions related to the same.

Under Rule 37, “if a party fails to provide information or identify a witness as required by 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on emotion at a hearing or a trial unless the failure was substantially justified or harmless.” Now, this is not a section of Rule 37 that we focus on very much for Case of the Week, and that’s one of the reasons I wanted to bring it to your attention today.

Issue and witness preclusion are becoming very key sanctions under Rule 37. We’ve seen that we’ve got an extremely high bar to be able to get a terminating sanction, to get a default judgment or even an adverse inference. You’ve got to have that really high bar of intent, and that’s a very difficult bar to achieve under the Federal Rules of Civil Procedure. You’ve got to have really bad conduct in order to be able to hit that bar for those kind of sanctions.

What is the next best option for a party who has been prejudiced by a lack of providing information in discovery? Witness and issue preclusion are important sanctions, and they can really turn a case around if a party is precluded from providing evidence from a particular witness or on a particular issue as a result of discovery violations. Really key issue for us to focus on today; a really key part of Rule 37 that I want you to focus on in section C.

According to Rule 37, that burden is on the party that’s facing sanctions to prove harmlessness. The challenge order here sites and applies the correct legal standard as to Rule 37 sanctions and its exceptions. The Court found that the Magistrate placed the defendant on the burden as required. We talked about that a little earlier. That was kind of dismissed out of hand.

The plaintiff then objected to the Magistrate allowing the defendant to introduce evidence without permitting the plaintiff to depose witnesses or scrutinize those basis for opinions. In essence, the plaintiff really advances an argument about the correctness of the Magistrate’s findings as to substantial justification and harmlessness, as well as the judge’s opinions as to the necessary cure.

Under Rule 37, the party seeking to avoid sanctions bears the burden of proving either substantial justification or harmlessness, not both. That’s the language of FRCP 37(c)(1). The Magistrate found here, after careful and thorough analysis, that each of the portions of the supplemental production fell under one or both of the exceptions. The Court said, “all right, I’m going to look at the individual categories of ESI that the judge looked at and see if any of them are clearly erroneous as required by Rule 72 for me to make a different ruling.” He goes down through each of the individual ones, and there’s just a couple of these are five or six different types. It’s just a couple of these that I wanted to focus on for you.

The first is a series of 500 and some Slack messages that were not originally produced by the defendant. It appears there’s not a lot of information in this ruling from the district court, but there is more information in the Magistrate’s ruling that the eDiscovery review platform that the defendant was using, the algorithm from that review platform caused a number of these messages to be marked as non responsive. Those messages were not produced initially, and it’s not clear how those were determined to be included in the supplemental production. Nevertheless, the reality is that they were responsive under Rule 26, and they were not produced until very late in the case.

The Magistrate was not really convinced that there was any basis for differentiating the supplemental Slack materials from ones that had already been produced. The plaintiff argued, though there are different conversations, they have on different days with varying degrees of probative value, and the plaintiffs sought a deposition to cure the error associated with the late production of those Slack messages. But what’s interesting here is that neither party put the actual Slack messages at issue before the district court to review them. The Court says, without the messages themselves, the Court is unable to evaluate whether and how one document would be different from the others, which did not prompt plaintiff to depose a particular witness.

While there’s a possibility that the message plaintiff points to has probated value, that does not lead to the inescapable conclusion that the Magistrate committed clear error. Both exceptions applied when it came to the Slack messages.

Lesson learned here: you’ve got to tell the district court exactly what you’re looking at. The reasons that those things don’t happen are usually page limits, right? You’ve got a limited amount of time, a limited amount of space. But there really is nothing more crucial than explaining the probative value of the evidence to the Court. You’ve got to tell them why it matters, why it matters to your case. You’ve really got to dig in and explain the actual effect of not having this evidence at a particular time on your case and how it’s going to affect your plan.

It doesn’t appear from this decision that a lot of that happened from the plaintiff side. But again, it’s not like I went through the briefing here, so no judgment. Just know that this is what the Court is taking away. You have to control what the Court is taking away in your motions.

The second source of ESI that I wanted to cover here that the Court addresses is the YouTube watch history of the plaintiff. If you’re not familiar with that, essentially, YouTube tracks everything that you do in terms of what you watch and how you watch it and when you watch it and where you watch it from (the IP address even). That watch history can be downloaded into a file. Because Google owns YouTube that is downloaded into a Google Takeout file. Google Takeout is a free service that anyone can use. That information was not completely provided or was not provided at all to the plaintiffs as part of its response to its request for production. This was really the bulk of the belated production.

Importantly, the Magistrate found that the YouTube history was not responsive to the plaintiff’s request for production, but did qualify as a supplement to its initial disclosures. The defendants really defense here was that they just failed to check all of the folders in the Google Takeout so that they didn’t provide everything that was necessary. That was not substantially justified, according to the Magistrate judge, but the Magistrate found that the defendant had shown harmlessness because the plaintiff is himself in the best position to evaluate and explain his own watch history. Essentially, the plaintiff is saying, “I need this history. You’re the only one who has it. I need you to give it to me so that I can understand how it’s going to be used at trial.” The defendant is saying, “hey, you’re the one who watched all these videos. You’re in the best place to be able to explain and evaluate this watch history. You don’t need any further discovery to be able to do that.”

What did the district court say about that? The district court really took a different view, and this is a place where the clear error standard is met. The district court said that the YouTube watch history was a significant portion of the supplemental production, and that unlike the supplemental Slack messages and the other emails, it’s not similar to previously produced documents in either content or form. That’s a key point that you can make when you’re engaged in motion practice here on Rule 72 that you’ve got to show differences between the discovery today was not produced and what has been produced previously.

The Court was also not convinced that the belated production of the watch history could be considered harmless simply because the plaintiff can opine on his own YouTube watch history. This is a quote from the Court:

It has been more than three years since the plaintiff worked for defendant and had access to the computer on which this watch history was purportedly generated. The possibility of prejudice and surprise the trial still exists. And this is especially true, whereas here, the plaintiff has not had access to or control over the ported YouTube watch history since leaving the defendant’s employment, or at the very least, since the defendant exported plaintiffs Google Suite data into the Takeout file. Since the defendant plans to rely on the watch history at trial, plaintiffs should be afforded the opportunity to scrutinize the documents providence.

The Court did allow the reopening of discovery for the limited purpose of propounding discovery, addressing the origin, creation, custody, and extraction of the YouTube watch history only. Now the Court conducted a similar analysis for each type of the data at issue here and really found no clear error. I’m not necessarily going to cover those other pieces with you because there’s nothing novel to discuss.

The Court did note on at least one occasion that there was information at issue that was not before the court. Again, we have that problem of the parties here not putting the actual information at issue in the papers to the district court. We often feel like if we reference back to previous filings that the district court is going to flip back to those filings and shout out here to all of the clerks who are buried in motion practice, but I find that that just isn’t the case. You can’t rely on the court going back and digging through all the filings to know all the information in the case.

First of all, a lot of the file is at the Magistrate Judge’s Chambers, and it isn’t as simple as just a click of a button. While it may be in some situations, you just can’t count on that. You’ve got to put all the information that you want in front of the district court on your objection in the papers to the district court.

That’s our decision. What are our takeaways?

We’ve talked about them a little bit. Novel types of data like Slack and YouTube watch history are being judged by the same standards. Don’t slack, get it—that’s my own pun for the day—on your collection practices and make sure to review your data and ensure that the timeline of what should be produced is there. Often, we spend a lot of time hitting the last minute of collection and getting things produced, and we forget to really go back and evaluate the production that’s been made and supplement. We just have so many things happening all the time as attorneys that you’ve got to have it be someone’s job to make sure that the request for production, the dates, the timing, the sources of ESI all are being fulfilled during discovery or that you’re constantly communicating with the other side about the need to supplement that information.

The standard of review under [Rule] 72 is a tall mountain to climb, but it is not insurmountable, as we’ve seen here in this decision.

The final takeaway really, is this: understand the interplay of Rule 26 and 37 as a basis for sanctions for issue and witness preclusion and know what you’re dealing with. Know what your standards are. Be prepared to defend the reasonableness of your collection efforts, of your efforts to provide information and (like the defendant had to here) explain if there’s an issue with your review platform and the algorithm, what happened and why. That was a substantial justification for the Magistrate here.

It’s about putting the information that’s required both in front of the Magistrate, but then again in front of the district court when the district court is ruling on an objection. All right, that’s our case of the Week for this week.

Thank you so much for joining me. If you are an ACEDS member and interested in using eDiscovery Assistant, there is a discount available to current ACEDS members and a trial for folks who are taking the ACEDS exam. If you’re interested in either of those, please reach out to us at support@ediscoveryassistant.com and one of our team will be in touch. If you are interested in doing a free trial of our case law and resource database, please sign up in the upper right-hand corner for your free trial. Thanks so much.

Happy holiday. All the best to you and your family.

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