#CaseoftheWeek Episode 60: Timing of Document Custodian Identification

In our 60th episode, CEO Kelly Twigger discusses the importance of timing in identifying document custodians and whether a 30(b)(6) representative automatically becomes a fact witness for document production. The case she analyzes is In re Broiler Chicken Antitrust Litig. 2022 WL 621807 (N.D. Ill. 2022) from March 3, 2022 presided over by United States Magistrate Judge Jeffrey T. Gilbert.

Good morning, and welcome to our #CaseoftheWeek for March 15th, 2022. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. Thanks so much for joining me today. I’m so happy to be here with you.

As you know, if you’ve joined us on #CaseoftheWeek previously, each week we collect a decision from the eDiscovery Assistant case law database and in cooperation with ACEDS, talk to you about the practical implications of that decision, what it means for you, your clients, and for your practice on a day-to-day basis.

This week’s decision comes to us from a case that you’re going to be familiar with if you’re an eDiscovery enthusiast like me called In Re Broiler Chicken Antitrust Litigation. The In Re Broiler Chicken case is relatively famous for the TAR protocol written by Maura Grossman, who was a special master in the case back in 2018. Now we’re in front of the Court in 2022—so this case is at least five years old—on a motion to compel seeking to have an additional document custodian named, pretty much on the eve of trial. Two and a half years after the parties had already agreed on document custodians’ exchange documents, discovery had been ongoing. Suddenly, there’s a request for a new document custodian. We’re going to get into that.

The issues for today’s case is always we tag the issues in eDiscovery Assistant for each of the decisions in our case law database. Our issues today are 30(b)(6) or corporate designee, proportionality, and failure to produce.

This is a case by Magistrate Judge Jeffrey Gilbert out of the Northern District of Illinois. There are an additional 37 decisions from Judge Gilbert in our case law database. Judge Gilbert is a very thoughtful and experienced jurist in eDiscovery related issues, and this is similarly an opinion that I suggest you take a few minutes to read. It’s short, it’s to the point, but it highlights some really key issues regarding the identification of document custodians that you’re going to want to pay attention to.

We are before the Court on a motion to compel the 30(b)(6) witness to produce custodial documents. Essentially, in May of 2021, about a month before the close of fact discovery, the plaintiffs issued a deposition notice for Bruce Mooney, who at the time was the Vice President of retail sales for Mountaire. Mountaire, I believe, is one of the defendants in the antitrust litigation. Mooney was responsible for retail sales. He communicated directly with customers about pricing, including the plaintiffs, who are direct action purchase plaintiffs in this case. Mooney allegedly collected and shared information about competitors pricing. That’s what is listed in the Court’s decision here.

Mountaire had also designated Mooney as a rule 30(b)(6) witness for individual topics that were requested by the direct-action plaintiffs, and so this motion is being brought by several of Mountaire’s customers, including multiple of those direct-action plaintiffs. Essentially, what they seek is to have Mooney designated as a document custodian and to have his documents produced before his deposition. There’s been a notice of Mooney as a deponent when he is not formerly a document custodian, and he’s also been put out by Mountaire as the 30(b)(6) custodian for specific topics. The question becomes, can the plaintiffs ask for a new document custodian at this late stage as a litigation, number one, and number two, can Mooney status as a 30(b)(6) representative require that he produced documents as he would if he were a document custodian or a fact witness. Those are our two issues.

What does the Court say? Well, the Court starts basically with the timing issue and says that the motion here is untimely. The Court states that the plaintiff had known about Mooney for more than two and a half years. They talked about the fact that the parties went through an arduous process for identifying document custodians that was extensive, and in fact, Mooney was a specific subject of those negotiations regarding document custodians. Ultimately, the parties agreed that other individuals at Mountaire were the appropriate sources. Mooney was not named as a document custodian in the original negotiations two and a half years prior to this motion in May 2021.

The Court basically said that plaintiffs can’t revisit those negotiations now without a much better reason other than what they presented. What they’ve done is identify who Mooney is, why he should have information. That really wasn’t a sufficient basis for the Court, given the timeliness issues.

The Court did acknowledge that some of the plaintiffs, the direct-action plaintiffs, came to the party late, but also recognized that they had had the opportunity to request Mooney as a custodian. One plaintiff named Ahold, in fact did, but Montclair declined to add him and no plaintiff, including Ahold, who requested him, brought up the issue again for another two and a half years prior to this motion. In the Court’s words, “This particular document custodian ship sailed a long time ago.” In essence, plaintiffs were too late, couldn’t ask for an additional document custodian.

The Court then looked at the potential value of Mooney’s documents and whether or not he should be required to produce them. The Court found that there was no evidence that the production of his documents would materially advance the plaintiff’s case. Mountaire had already produced hundreds of documents on which Mooney was listed or named, and the plaintiff failed to show any need for the information that they were seeking or their ability to prosecute the case would be materially prejudiced without the production of additional documents for Mooney. The Court really found that it was not clear that the discovery being sought in the motion was proportional to the needs of the case at the time within the meaning of Federal Rules of Civil Procedure 26(b)(1). We’ve really got the Court saying “one, you’re out of time, and two, you haven’t shown me that the evidence that you’re asking for is proportional to the needs of the case.” Again, remember that those six factors from Rule 26(b)(1) also include timeliness as an issue. That’s key here.

The Court then looked at the plaintiff’s argument that Mountaire had not shown that adding Mooney would be duplicative or unduly burdensome. Essentially, the plaintiffs are arguing that it is Mountaire’s responsibility to argue proportionality and that this request of having Mooney be a document custody is really unduly burdensome on it. The Court said, “but plaintiff, you haven’t really offered any compelling argument that Mooney is likely to have non duplicative documents that relate to the issues the case, and based on the timing, we’re unwilling to revisit the issue of adding additional custodians.”

Not really substantively addressing whether or not the defendants had the obligation to raise the proportionality considerations, but essentially dismissing them both on the timeliness and also the lack of evidence supporting the need for additional Mooney documents other than the several hundred that had already been produced.

The plaintiffs then argued that Mooney should be added as a custodian because he had recently been identified by Mountaire as a 30(b)(6) witness on multiple topics. The Court looked at that and said, “you’ve cited absolutely no authority for the proposition that a 30(b)(6) witness must ‘reflexively or automatically be made a document custodian’, and the Court said that a corporate designee does not automatically become a fact witness.

That’s really a key point here. Usually when we’re dealing with a 30(b)(6) witness, we don’t ask for documents in advance from that particular witness. We’re asking for documents from fact witnesses to be able to give us the basis for that 30(b)(6) deposition. There’s no compelling authority, no authority at all not even compelling authority, here to be able to back up that argument that Mooney should be a document custodian because he had been named as 30(b)(6).

What are our takeaways here? Well, I think we talk about always on our #CaseoftheWeek that the biggest component to doing eDiscovery effectively is getting started very early and plan, plan, plan. Here, in essence, that custodial identification is part of getting started early. It’s hard to do; it’s hard to choose those custodians out of the gate when you don’t know who you’re choosing or what the value is going to be. What I would tell you is what you’re going to learn is once you get those custodians in the gate, you’re going to need to make sure that your review of the documents looks at the relationships of the parties and the individual custodians that you selected with the documents and see if there’s anybody else that needs to be added.

There are two things. One, you want to see in that review, whether there are additional custodians that need to be added in order to make your collection complete. Two, you need to know whether or not specific issues are being addressed. In essence, there are ways where you can even add issue codes to a panel, a coding panel in your review software that allow you to code things responsive to specific requests for production or to specific custodians to help you see those things visually a little bit from a reporting perspective.

You’re going to want to do that review analysis early, because otherwise you’re going to end up here as the plaintiffs did in being unable to add a document custodian later on. It may be that there was a very good basis for adding Mooney as a document custodian, but it was not articulated to the Court in a way that was effective, or at least that came through in the judge’s decision.

Again, we’re always tied on our #CaseoftheWeek analysis by what is in the four corners of the decision from the judge. There’s often evidence that’s presented by the parties that doesn’t make it into those decisions.

Now, with regard to identifying custodians, what we do is with regard to our ESI protocol is we make sure that the process for identifying custodians is laid out in the ESI protocol, but I don’t recommend that you commit to a number or to specific names within the ESI protocol because then you’re bound by that, there’s not really an iterative process for that. Consider adding language to your ESI protocol about the process for identifying custodians.

We already talked about the need to review the documents early on with an eye towards needing additional custodian, because here really as we’ve mentioned, the Court’s biggest issue was the plaintiff’s timing with regard to trying to add Mooney as a document custodian. I think if it had happened earlier in the case, maybe even just a few months after other custodians have been identified, then the plaintiffs would have had a better shot at adding Mooney as custodian.

All right, that’s the #CaseoftheWeek for this week, short and sweet, but key. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.

If we missed you at legal week last week, sorry to see that. If you are interested in reaching out to us to hear about eDiscovery Assistant, you can do that by sending us an email at support@eDiscoveryAssistant.com.

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Thanks so much. Have a great week. Stay safe and healthy and I’ll see you next week.

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