In Episode 138, Kelly Twigger discusses why the Court ordered Uber to provide information about its legal hold process, sources of ESI and steps taken to preserve ESI, a decision that re-emphasizes a party’s obligations under the Federal Rules of Civil Procedure and local court checklists in Doe LS 340 v. Uber Techs., Inc., 2024 WL 107929 (N.D. Cal. 2024).
Introduction
Welcome to this week’s episode of our 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.
If you haven’t yet had a chance to grab our 2023 eDiscovery Case Law Report that discusses the key trends and cases from last year, you can download that today.
Each week on the Case of the Week I choose a recent decision in ediscovery and talk to you about the practical implications. This week’s decision raises the issue of what details a party has to provide about the custodians and legal hold put in place for a matter. This decision is one of several over the last few years that is requiring parties to exchange much more detail about custodians on hold and the efforts to preserve ESI, including what sources of ESI are being preserved and when.
Let’s dive into this week’s decision. It comes to us from In re Uber Techs., Inc. Passenger Sexual Assault Litigation. The title for this actual decision is Doe LS 340 v. Uber Techs., Inc. but it is part of the larger series of the MDL litigation. This is a decision from January 9, 2024, from United States Magistrate Judge Lisa Cisneros. Judge Cisneros has 24 cases in our eDiscovery Assistant database, and as always, we add the issues for each of the decisions in our database from our proprietary issue tagging structure. Those issues for this week’s decision include attorney-client privilege, attorney work-product, legal hold, scope of preservation, and protective order.
Facts
We are before the Court on a motion to enforce Pretrial Order No. 2 and compel Uber to produce information regarding its litigation hold and the scope of its preservation of ESI. The underlying litigation here is a multi-district litigation in which plaintiffs, who were alleged victims of sexual assault or harassment by their Uber drivers, alleged that Uber failed to implement appropriate safety precautions to protect them.
The plaintiffs allege that Uber was aware that its drivers were engaging in sexual misconduct or sexual assault against their passengers as early as 2014. Prior to this MDL, multiple individual cases against Uber were filed in California state court, which were consolidated according to that court’s structure based on similar allegations. In this case, on November 3, 2023, District Judge Breyer issued Pretrial Order No. 2. That order was, according to the Court, “an ‘interim measure pending the parties’ proposal of a more tailored order concerning the preservation of relevant information’, and a way to ‘ensure the preservation of documents and ESI that may be discoverable in relation to any of the issues in this litigation.”
The parties then began to meet and confer to discuss the scope of Uber’s evidence preservation efforts and a proposed protective order. Uber declined to provide certain information regarding preservation efforts until a protective order was entered. The parties could not agree — a theme we often see here on Case of the Week — and the plaintiffs filed this motion on December 14, 2023. The final protective order between the parties was issued on December 28, 2023, so just two weeks later. That also does not sound like a very fun holiday vacation for the lawyers.
Once the order was issued, Uber provided some information on its preservation efforts on January 4 and January 8, 2024, including a list of 15,700 current and past employees subject to a legal hold with only their job title — no names, and no information about when the holds were issued. Of those 15,700, 10,200 of the employees were on hold for other unrelated matters. Right now we just have a list of job titles that were placed on hold — no other information about the matter for which they were placed on hold, who was in that job title at the time, who the actual person is that’s on hold.
The Court then held a hearing on the motion on January 8, 2024, at which Uber confirmed that it had also produced documents from the California cases and which it claimed represented all of the information that plaintiffs sought about the sources of ESI, including both custodial and non-custodial sources. Remember here, the plaintiffs want two things:
- they want to know about the custodians that were placed on hold, and
- they want to know about the sources of ESI that are related, both custodial and non-custodial.
When we say non-custodial or custodial — for those of you who don’t understand that term — that means something that is within a custodian’s control. So I, as a custodian, may have control over my email, specific SharePoint sites, Slack, Teams data — whatever is specifically tied to me as a custodian — and you would search based on me as the custodian, would be custodial data. Non-custodial data are data sources where information is stored that are not tied to a custodian. So think long-term databases like a salesforce.com. Any kind of business-related database that stores information for the company — financial information, sales information, production information, anything like that would be in databases that would not be custodian-based, so we call those non-custodial data sources.
Here, because the plaintiffs had not been able to review all of the information provided by Uber in advance of the hearing, it asked the Court to order disclosure of the categories included in their motion to the extent that Uber had not already done so. If you listen to the timeline here — and that’s always one of the things we focus on on Case of the Week — you know that this motion was filed on December 14th, Uber ultimately produced information on January 4th eight days after the protective order was entered on December 28th, and then the hearing was held on January 8th and Uber also produced more information on that same day. Essentially, plaintiffs are saying, and the Court is saying, nobody’s had a chance to look at the information that Uber provided.
What did the plaintiffs ask here from the Court? They asked the Court to order Uber to do three things:
- Immediately produce basic details surrounding its litigation holds, including the names, job titles, and dates of employment of the recipients of the hold notices, the dates of issue, and what litigation or claim the holds relate to;
- Immediately disclose information as to the ESI sources enumerated in Pretrial Order No. 2, ¶ 3, including non-custodial sources that Uber has preserved and when it preserved them, when such ESI sources were used, what they were used for, the general types of information they housed, and which Uber employees used or had access to those sources; and
- Suspend Uber’s company-wide document destruction policies for a period of time to allow plaintiffs to determine what, if any, relevant ESI has been destroyed.
Analysis
Let’s turn to the Court’s analysis on those three asks.
The Court begins here with Uber’s duty to preserve, stating that as soon as a potential claim is identified, a party has a duty to preserve evidence which it knows or reasonably should know is relevant to the action, including suspending any document retention policy and putting a legal hold in place to ensure preservation. None of that comes as a surprise to us. We’ve known what the scope of the duty to preserve is and when it arises for a very long time.
The Court here also notes, however, that the duty to preserve includes an obligation to, “identify, locate, and maintain information that is relevant to specific, predictable, and identifiable litigation” but that organizations are not required to preserve every document. That’s going to be important later in our analysis.
Plaintiffs here argued that Uber unreasonably withheld basic facts around its litigation holds, including names, job titles, dates of employment for each recipient, the dates of issue, and what claim the holds relate to, and that the information they are requesting was not subject to attorney-client privilege.
Uber argues that the Rule 26(f) checklist provided by the Northern District of California states that parties may provide “the names and/or general job titles of descriptions for custodians for whom ESI is preserved” and that they have complied with the language of that checklist by providing a list of job titles. I think looking at the face of the list that they provided, as well as the checklist, that it’s pretty obvious that Uber’s actions are not really in keeping with what the Court intended to be provided under that checklist, but let’s hear what the Court has to say.
The Court looked to recent precedent and found that Uber’s position was not supported by the law. According to the Court, the basic details surrounding a legal hold are not protected by either the attorney-client or the work-product privilege, and that the details about the hold, including when and to whom holds are given, are fair game. The Court also found that while plaintiffs are not entitled to exactly what Uber employees were told through the holds, they are entitled to know what the employees are doing to identify, collect, and preserve ESI.
The disclosures that plaintiffs sought here included whether the legal hold related to a case or complaint involving allegations of sexual assault or sexual harassment. Uber says that the plaintiffs are not entitled to that information. The Court found here that the plaintiffs are entitled to that information that allowed them to evaluate whether Uber had met its preservation obligations, and, given that a sexual harassment or assault case could have put Uber on notice of its duty to preserve, Uber was required to tell plaintiffs which legal holds pertain to any case or complaint alleging such behavior by one of its drivers. With that, the Court granted the motion for information about the legal holds.
The Court then turned to the second question about information sought by plaintiffs about Uber’s sources of ESI. The Court begins there by acknowledging that neither the plaintiffs or the Court have been able to review the documents — as I mentioned earlier — in which Uber claims the information that plaintiffs requested is listed. As such, the Court looked at the legal question of what Uber is required to provide and held that “parties are ‘entitled to know what kinds and categories of ESI’ a party has collected and preserved and what specific actions were undertaken to that end.” Citing the checklist for the Rule 26 meet and confer that I mentioned earlier, the Court held that “the disclosure of information indicating non-custodial sources of the ESI is expected in the ordinary course of discovery.” Citing the Sedona Principles and again referring to the checklist, the Court found that the parties should identify and discuss “a ‘list of systems, if any, that contain ESI not associated with individual custodians’”, such as enterprise databases. That’s the non-custodial data sources that I was discussing earlier. According to the Court:
“The disclosure of non-custodial data sources will facilitate the parties’ ability to meet and confer regarding the scope of evidence preservation, and, if necessary, propose a modified preservation order for this Court’s consideration.”
Following that, the Court granted plaintiffs’ motion in part and required Uber to disclose the following:
- Information about the sources of ESI it preserved, and specifically, what sources of ESI it preserved,
- When each source was preserved,
- When each ESI source was used,
- What each source was used for, and
- The general types of information housed in each source.
Owing to the sheer number of employees that Uber has, the Court declined to order Uber to provide information about which employees used or had access to each source of ESI, as the plaintiffs had requested.
Finally, the Court addressed the third request from plaintiffs — the requested suspension of Uber’s document destruction policies that remained in place. Plaintiffs alleged that the continued destruction policies may be allowing for relevant ESI to be destroyed every day, and they asked the Court to suspend Uber’s destruction policies until the parties could come to an agreement about a more tailored preservation order contemplated by Pretrial Order No. 2.
Plaintiffs argue that the notice of the litigation began no later than 2013, but that Uber maintained only a six-month email retention policy from September 2015 to January 2023, and it deleted Slack messages that were more than 90 days old during that period. In January 2023, Uber changed its email policy to retain emails not subject to a litigation hold for 24 months.
Uber argued that plaintiffs’ request was over-broad, that the company-wide suspension affects far more than just its ride share application business, and that there’s no legal basis to support the request to take off all of their document retention policies for the entire company.
The Court agreed with Uber here and found that the request was overly broad, noting that Uber has already suspended automatic deletion of its emails for thousands of custodians. The Court also noted that the plaintiffs did not show that the relief sought addressed plaintiffs’ concerns about the destruction of documents in earlier years, and that a suggestion that potentially relevant ESI could be lost going forward is not sufficient to order the document destruction policies to be taken offline. With that, the Court denied plaintiffs’ request to order the suspension of Uber’s company-wide policies.
Takeaways
What are our takeaways from today’s decision?
The biggest takeaway from today’s case is that you need to understand the scope of information you may have to provide about efforts to identify and preserve ESI for a matter. This decision is not an anomaly. It’s one that I brought up because it’s back to basics. Again, it’s a bigger scope here because it’s an MDL and Uber is a large company with more than 20,000 employees, but that doesn’t change the legal precedent of this case. In fact, the decisions that the Court cites to as a basis for its decision here involve individual parties. That means that, regardless of the size of your client, you need to be tracking all of the data about your preservation efforts. That includes for each custodian, the dates of the hold that was sent agreed to, the dates of the employment, the custodian’s role, title, sources of ESI, date of custodial interview, etc. Track everything.
For non-custodial data sources, you need to know the name of the source, the types of data stored in it, the liaison for that source, how long the source has been active at the company or the client, and the date range of data stored in it, how can you access that data source, which includes working with the liaison between legal and IT or whoever has access to the source on preservation processes for each individual source of ESI.
In short, this decision makes it clear that in the Northern District of California parties do need to exchange detailed information about efforts to preserve that are both custodial and non-custodial sources of ESI, including when legal holds were issued. Those of us who work in ediscovery 24/7 know that this exchange of information is the best way to move things forward quickly. But there are risks of information that gets provided during those exchanges becoming public and subjecting larger organizations to increased litigation or requests that may not be above board or on par with the needs of the case. That was Uber’s concern here, and the Court correctly narrowed the focus of the motion to what was appropriate for the case. For you representing clients who are in larger organizations who are going to receive these types of requests, you need to be on notice to be able to argue sufficiently tailoring the request so that the court can understand what is proportional to the needs of the case and what is overly broad.
Conclusion
That’s our Case of the Week for this week. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.
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