In Episode 134, our CEO and Founder, Kelly Twigger revisits counsel’s obligations to supervise and the perils of self-collection and the standard for extending a discovery deadline set under the court’s scheduling order in ZAGG, Inc. v. Ichilevici, 2024 WL 557899 (S.D. Fla. 2024).
Introduction
Welcome to this week’s Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education. Thanks so much for joining me today.
Each week, as you know, on the Case of the Week, I choose a recent decision in ediscovery and talk to you about the practical implications of what the court had to say. This week’s decision raises the issues of self-collection, as well as the standard for extending discovery deadlines — two crucial issues that come up regularly. In fact, we discussed self-collection at the University of Florida eDiscovery Conference last week, so I thought this one was pretty timely.
One announcement before we dive into the case for this week. Our 2023 Case Law Report is now available. Deja will drop the link into the comments or post it for you to grab at no cost. The report details the dramatic rise in ediscovery decisions in 2023 and the trends that the case law is showing us. A huge thanks to Cassandre Coyer at ALM for writing up the report for Legaltech News this morning.
All right, let’s dive into this week’s case.
This week’s decision is another short one, but it’s important, and it comes to us from the case ZAGG, Inc. v. Ichilevici. This is a decision from January 30, 2024 — so pretty recent — written by United States Magistrate Judge Lisette Reid. Judge Reid has 22 decisions in our eDiscovery Assistant database, and, as always, we tag each of the decisions in our database with our proprietary issue tagging structure. This week’s issues include text messages, self-collection, failure to produce, cost recovery, and 30(b)(6) corporate designee.
Background
This is a trademark infringement action that was brought by ZAGG, which manufactures screen protectors for mobile phones and other products. In essence, ZAGG is complaining here that the defendants were taking expired ZAGG products and reselling them, even though they no longer carried the manufacturer’s protections. We are before the Court on a motion by ZAGG to compel and to extend the discovery deadline. For purposes of the timeline — which we always talk about on Case of the Week — on October 20, 2023, the Court held that discovery should be completed by November 29, 2023, so just a month later, and that no additional extensions would be granted.
Facts and Analysis
This is a short decision, and the Court interweaves the important facts with the analysis, so I’m going to follow the Court’s lead here and do the same. There are two issues going on in this decision that are important for our purposes here on Case of the Week.
The first relates to self-collection that was done by Mr. Ichilevici. Mr. Ichilevici testified that he conducted his own searches for responsive documents under the guidance from his attorneys. But he did not provide his attorneys access to his Amazon Seller Central account — which was crucial here — did not know the search terms that he used to identify responsive documents, and, although much of his business with vendors was done via text message, he did not produce any text messages. ZAGG also identified emails that were associated with publicly available reviews of the products at issue that were not produced.
The Court took a look at those facts and noted here that a layperson’s collection of relevant discovery from an electronic device is “highly problematic” in that it raises a risk of data being destroyed or corrupted. It also raises the risk, even though the Court doesn’t note it here, that the witness isn’t going to identify all the relevant information or, within their own interest, may choose not to identify information that might be used against it. The Court looks to two cases here, In re Abilify, and one of my favorite cases, the M1 5100 decision from Judge Matthewman, both on self-collection. The Court cites the language from the M1 5100 case that has been the guidepost on self-collection since 2020. That language is this:
The relevant rules and case law establish that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery, search, collection, and production. It is clear to the court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to “self-collect” discovery without any attorney advice, supervision, or knowledge of the process utilized.
Incidentally, Judge Matthewman’s decision in the M1 5100 case was our first ever Case of the Week back in 2020, and it continues to come up regularly in conversations about self-collection. In fact, we just cited it on our case law panel at the University of Florida eDiscovery Conference last week when the self-collection issue came up as to really what is the scope of an attorney’s obligations to be able to advise their client on what information is relevant for purposes of collection.
The Court here found that counsel should have supervised the defendant’s collection and ordered counsel to review Mr. Ichilevici’s records and provide any additional responsive materials. I really encourage you — and I’m going to talk about it a little bit in the takeaways — to go back and read that M1 5100 case, because it lays out in detail what the law is and what a counsel’s obligations are to supervise their client regarding ESI.
The second issue here involved whether or not there was good cause to reopen discovery following two admissions of Mr. Ichilevici at his deposition, which was taken on the last day of discovery.
First, the Court noted the issues about self-collection again, and second, that Mr. Ichilevici identified a logistics vendor during his deposition that was not previously disclosed. ZAGG, of course, wanted to issue a subpoena to the logistics vendor, but couldn’t because they were on the last day of discovery.
The Court begins by evaluating whether or not it has good cause to reopen discovery by looking at the language of Federal Rule of Civil Procedure 16(b)(4), which provides that after a scheduling order is entered, it “may be modified only for good cause and with the judge’s consent.” According to the Court, the good cause standard “precludes modification unless the schedule cannot be met despite the diligence of the party seeking the extension.” The Court notes further that good cause can only be shown if a party can demonstrate excusable neglect, which requires taking all relevant circumstances into account, including the danger of prejudice to the other side, the length of the delay and the potential impact, the reason for the delay, and whether or not the movant acted in good faith.
Weighing those factors here, the Court found that the newly discovered logistics vendor was relevant and allowed ZAGG to issue the subpoena. It also found that there was good cause to reopen discovery. The Court noted in reopening discovery that the defendant failed to articulate any prejudice from an extension of discovery, that the extension would be short, and that there was no impact on the judicial proceedings. Finally, the Court noted that the disclosures regarding self-collection and the logistics vendor were outside the control of the plaintiff, “as they emerged on the last day of discovery during a deposition that should have taken place well before the discovery cut off.” I couldn’t agree more there.
Takeaways
What are our takeaways from this case?
Let’s start with self-collection, as we’re continuing to have discussions about the scope of counsel’s obligations to supervise the identification and collection of relevant data for production. I encourage you, again, to read both the M1 5100 decision on this issue, as well as the In re Abilify decision quoted by the Court here. The M1 5100 decision does an excellent job of laying out the law, and this particular quote from Judge Matthewman is pretty instructive on what the scope of an attorney’s obligations are:
The relevant rules in case law establish that an attorney has a duty and obligation to have knowledge of, supervise, or counsel the client’s discovery, search, collection, and production. It is clear to the court that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to self-collect discovery without any attorney advice, supervision, or knowledge of the process utilized. There is simply no responsible way that an attorney can effectively make the representations required under Rule 26(g)(1), and yet have no involvement in or close knowledge of the party’s search, collection and production of discovery.
Judge Matthewman goes on to say that:
An attorney’s signature on a discovery response is not a mere formality. Rather, it is a representation to the court that the discovery is complete and correct at the time it is made. An attorney cannot properly make this representation without having some participatory or supervisory role in the search, collection, and production of discovery by a client or interested person, or at least having sufficient knowledge of the efficacy of the process utilized by the client. Abdicating completely the discovery search, collection, and production to a layperson or interested client without the client’s attorney having sufficient knowledge of the process, or without the attorney providing necessary advice and assistance, does not meet an attorney’s obligation under our discovery rules and case law. Such conduct is improper and contrary to the Federal Rules of Civil Procedure.
Self-collection here shines a glaring spotlight on what makes ediscovery hard. Counsel now have an obligation to understand how the various sources of ESI work and what they need to do to look for relevant information in each one from each witness. That’s a point that’s made over and over again in the Case Law Report that I mentioned earlier, and it’s only getting more complex as new technologies develop. You need to understand the sources of ESI that are at issue in a matter and ensure that you’re making a reasonable inquiry as required by Rule 26. If you don’t know how to do that, find someone who does before you sign those discovery responses.
The second issue here is the ability to reopen discovery. What leads to that in this case is waiting until the last day of discovery to take the defendant’s deposition. Now, there are probably a million reasons why that happened in this case, but it’s not going to help you meet your obligations in ediscovery. We talk over and over here on Case of the Week about the need to get in and get discovery quickly so that you have time to understand what you receive and be able to follow-up. In some instances, that means deposing witnesses early enough to allow for follow-up. ZAGG’s motion here could have just as easily been denied by another court who felt that they should have taken the deposition earlier. And we’ve seen multiple decisions from courts refusing to allow third party subpoenas after the close of discovery or close to the close of discovery because there would not be enough time for the third party to respond.
Have a plan for discovery — know what you need to know and identify what you don’t know. Don’t rely on the excusable neglect standard under Rule 16 to be able to extend discovery. You might not always get it. Know what you need to know and identify what you don’t know. Get outside help if you need it. The courts are enforcing counsel’s obligations under Rule 26(g), and you need to make sure you are meeting your obligations during the discovery period.
Conclusion
That’s our Case of the Week for this week. Thanks so much for joining me. As a shout out to Amanda and Jenni, I’m going to say — see you next Tuesday!
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