Episode 119: Is Your Methodology for Identifying Relevant Documents Privileged?

In Episode 119, our CEO, Kelly Twigger discusses whether a party can rely on self-collection and when parties must exchange the details of their preservation and production protocols in 𝐋𝐲𝐦𝐚𝐧 𝐯. 𝐅𝐨𝐫𝐝 𝐌𝐨𝐭𝐨𝐫 𝐂𝐨.

Introduction

Welcome to this week’s episode of our Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. eDiscovery Assistant is a platform that helps lawyers and legal professionals leverage the power of ESI as evidence by reimagining how to conduct research for eDiscovery, as well as training in eDiscovery.

My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, as well as the principal at ESI Attorneys. Last week at Relativity Fest we announced that we have integrated generative AI to create summaries of each of the decisions in our case law database. Those are now available to users, and we’d love to hear your feedback on them.

Each week on our Case of the Week series, I choose a recent decision in ediscovery and talk to you about the practical implications of that judge’s ruling, what it means for you, your practice, and for your clients, and how to do the discovery of ESI better. This week’s decision covers two important areas in eDiscovery: self-collection and whether the process used to identify responsive materials in discovery is privileged.

This is a decision that we covered at the case law panel at Relativity Fest last week. That panel also included Judge Allison Goddard, as well as Bill Hamilton from the University of Florida College of Law. David Horrigan of Relativity moderated the panel, and viewing of that panel is available remotely if you were a registrant for Relativity Fest but didn’t happen to catch it. It was a really interesting discussion, and I encourage you to take a look.

Unlike any other substantive area in the law, the constantly evolving landscape of technology means that trial courts on both the federal and state level are regularly issuing new opinions on parties’ obligations around ESI. Because the bulk of our learning in ediscovery comes through case law, diving into the details of those decisions and what our practical takeaways are is one of the best ways to understand the issues and details we need to focus on in planning and executing any discovery.

Before we dive in, if you haven’t yet had a chance to grab our 2022 Case Law Report, you can download a copy of that to see the landscape of decisions. Each of the decisions in eDiscovery Assistant is a public link, meaning that you can link to those decisions in your writing. You can also review the full text of the decision without having a subscription to log in.

Background

This week’s case is a decision from Lyman v. Ford Motor Company. It is from June 28th, 2023, and is a decision from United States Magistrate Judge Elizabeth Stafford. Judge Stafford is prolific in the discovery space, she has 43 decisions in the eDiscovery Assistant database. This week’s decision is issue tagged as are all of the decisions in our database. This week’s issues include attorney-client privilege, attorney work-product, self-collection, and search terms.

This is a very short decision. It’s only a few paragraphs, but I wanted to bring it to your attention because there are some very interesting quotes from Judge Stafford and some very interesting analysis on these two particular issues. Since it’s a short decision, we’re just going to combine the facts and the analysis because they’re very concise.

Facts and Analysis

We’re before the court on a motion to compel the electronic searches of custodian records for four custodians, as well as the underlying methodology for identifying responsive materials. The Court here granted the plaintiff’s request for Ford to run searches of all the records associated with four custodians, and she ordered that the parties have transparent and cooperative discussions about the search terms and search methodology and required that the defendants produce responsive documents. The Court notes that Ford provided a vague description of its search methodology for most of the custodians and that it claimed privilege for testimony that plaintiffs said proved that Ford’s methodology was too custodian-driven. Interestingly, we talked about custodian-driven discovery last week on the Case of the Week and the fact that we regularly have custodial data sources and non-custodial data sources. Often the search methodology is different for each source of ESI, specifically with noncustodial data sources. It’s a very important distinction here that we’re talking about when we’re looking at what a party search methodology is.

On the issue of transparency, the Court, although acknowledging that there is conflicting precedent, elected to follow the decisions in William A. Gross Construction Associates and In re Valsartan, both of which are decisions in the eDiscovery Assistant database. The Court found that, “It agrees with opinions emphasizing that electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.” I don’t think we’ll find disagreement in that courts across the country require that cooperation. I think the difference here is in what level of cooperation the courts require, and what is required to be disclosed to the other side about how you identify responsive materials. Here the court saying it wants you to disclose everything.

On the issue of self-collection, the Court reemphasized her holding from the Waskul v. Washtenaw Cnty. Cmty. Mental Health case, in which she held that,

“An attorney may not simply rely on custodian self-collection of ESI. Instead, counsel must test the accuracy of the client’s response to document requests to ensure that all appropriate sources of data have been searched and that responsive ESI has been collected and eventually reviewed and produced.”

Judge Stafford also rejected Ford’s argument that a party search protocol is privileged, citing specifically to three decisions and quoting Vasoli v. Yards Brewing Co., which we’ve also included in the comments, a decision from the Eastern district of Pennsylvania in 2021 that held, “Neither the attorney-client privilege nor the work product doctrine prohibit the disclosure of factual information. The steps that a party took to search for and produce relevant documents are discoverable.” The Court notes specifically from the Vasoli case an additional quote in which she cites,

“It would go against reason to find that the steps a party takes to identify responsive documents are privileged when those steps result in an evasion of discovery obligations by not collaborating on their discovery and ESI search strategies. Such a holding would reward attempts to circumvent the collaborative process envisioned by the discovery rules and would run contrary to their instruction that this kind of gamesmanship should instead be met with sanctions.”

Those are really important quotes from Judge Stafford, and I think that they’re going to start being highlights of discussions that we have in the process of what information an opposing party is required to exchange in identifying responsive information. Obviously, it’s a jurisdictional issue. Judge Stafford is in Michigan, and whether this will go up on appeal as such and will get any pronouncement that would be presidential across the Federal Circuit is always important. But this is a key case to keep in mind, particularly if you’re arguing like here, that Ford didn’t produce all the information it should have.

Takeaways

Let’s talk about what the takeaways are mixed in with a little bit of factual information from the case. Judge Stafford’s decision here is really key on the two specific issues that I mentioned: self-collection is not permitted, and a party’s search methodology to identify responsive documents is not privileged.

Let’s start with self-collection. We had a great discussion on the panel last week about this issue, and it really comes down to whether or not the collection is properly supervised by counsel. That proper supervision means that counsel can sign the responses to the request for production and meet their obligations under Rule 26(g) that they have made a reasonable inquiry into and identified responsive materials. If you are allowing your client to review ESI and determine the scope of what is relevant for a matter with no supervision or with very limited input and no overseeing of the data or checks, as Judge Stafford specifically mentions here, you are not meeting your obligations to conduct that reasonable inquiry. We’ve seen sanctions cases under Rule 26(g), and they’re all included in eDiscovery Assistant, where courts have said to counsel, we’re sanctioning you for failing to meet that obligation.

Self-collection is going to send you further down that path toward sanctions. We talked about self-collection extensively in Episode 1 of our Case of the Week when we looked at Judge Matthewman’s decision in the M1 5100 case. Judge Stafford does not go into the perils of self-collection here in the Lyman decision, but she does cite to her earlier decision in Waskul, in which she stated,

“Since at least 2006, counsel have been required to take an active, affirmative role in advising their clients about the identification, preservation, collection, and production of ESI. An attorney may not simply rely on custodian self-collection of ESI. Instead, counsel must test the accuracy of the client’s response to document requests to ensure that all appropriate sources of data have been searched and that responsive ESI has been collected and eventually reviewed and produced.”

That’s where we are on self-collection from Judge Stafford. It’s consistent with what we’ve seen from courts across the country. The level of supervision that is required is articulated well in that quote, and you need to follow it.

The other key issue here in Judge Stafford’s decision is that the search methodology that Ford used to identify responsive materials is not privileged, whether we’re talking about attorney-client privilege or attorney-work product. What brings that issue to the forefront here is that Ford claims that it’s made a full production of responsive materials, but the court notes that, “The limited production from key custodians permits a reasonable deduction that other documents may exist.” If that’s the tack that you take, one that seems like you’re holding back documents and not being transparent about responsive information, you will likely find yourself with a similar ruling from a court.

Courts are requiring the cooperation mandated by the rules, and it’s a balance between what the parties are entitled to do under the FRCP to identify relevant, proportional, and non-privileged information, and what they have to disclose when they don’t do that, or where there is some perceived lack of transparency. Be open and strategic at the same time to avoid this situation. If you’ve done the work to identify terms or a process that identifies the responsive information you’re required to produce, evaluate the cost benefit of just sharing it with the other side. Generally speaking, if you’re meeting your obligations, it’s good to share that information because it allows you the benefit of that transparency to the court, and you’re on a more solid footing with the court in terms of the actions that you’ve taken.

Conclusion

That’s our Case of the Week for this week. Thank you so much for joining me. We’re back again next week with another decision from our eDiscovery Assistant database. As always, if you have a suggestion for a case to be covered on Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.

Thanks so much, and have a great week.