In Episode 142, Kelly Twigger reviews whether language provided in response to specific RFP’s was sufficient to overcome vague general objection claims or carried the day on a motion to compel social media tracking data and other key documents in a trademark infringement matter in Byte Fed., Inc. v. Lux Vending LLC, 2024 WL 1912950 (M.D. Fla. 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.
One announcement before we get started. I am working with the Midwest Chapters of ACEDS on a four-part series on ESI protocols. There are four webinars in total. The first two have already aired, but are available to stream here. The third installment will be a judges panel moderated by my good friend David Horrigan on June 6th, and I’ll be hosting a workshop on ESI protocols in July. You can use the link to sign up for more details and view the previous sessions.
On with the show.
Each week on the Case of the Week I choose a recent decision in ediscovery and talk to you about the practical applications of that case. This week’s decision hits on the important topic of general objections. Despite the rule changes going back to 2015, we are continuing to see multiple decisions on this issue — with 56 cases already addressing it since January 1, 2024. As we’ll see with this decision, courts really have no tolerance for vague objections that do not provide the specificity required by the Federal Rules of Civil Procedure as of the amendments in 2015.
Let’s dive into this week’s case, which comes to us from Byte Fed., Inc. v. Lux Vending LLC. This is a decision from United States Magistrate Judge Sean Flynn from the Middle District of Florida dated May 1, 2024. Judge Flynn has 38 decisions in our eDiscovery Assistant database, so he is no stranger to ediscovery issues and tackles them with a lot of vigor.
As always, we assign issues to each one of the decisions in our database, and this week’s issues include failure to produce, cost recovery, general objections, cost-shifting, competency of counsel, privilege log, proportionality, social media, text messages, bad faith, third party subpoena, Slack, instant messaging and cloud computing. Now that’s a lot of issues, but mostly the analysis from the Court focuses here on the general objections. Many of those issue tags are related to the sources of data that are at issue for the request for production that documents have not been produced in response to.
Facts
We are before the Court on a motion to compel in a trademark infringement dispute. The plaintiff here initially sent a subpoena to the Cardamone Consulting Group, LLC (“Cardamone”) in May 2023 and then added Cardamone as a party in August 2023, alleging that they participated in the infringement through their provision of advertising and marketing services.
Let’s take a look at the timeline, and that’s one of our crucial themes here on Case of the Week — the timeline is one of the most important tools we have in analyzing ediscovery issues.
Plaintiff initially served the third party subpoena on Cardamone on May 26, 2023, and requested production of materials responsive to the subpoena by June 8th. Cardamone hired counsel on June 5th — just three days before a response was due — and counsel requested an extension, which plaintiff granted until June 16th. Of note is that the 16th was four days before a scheduled mediation in the matter and plaintiff wanted a few days to review the documents. But Cardamone did not respond by the deadline, and instead filed a motion to quash on June 12, 2023, arguing that the subpoena sought confidential information and was unduly burdensome.
While that motion was pending, plaintiff added Cardamone Group as a party in August and served their first set of requests for production on Cardamone on September 21, 2023. Cardamone served its responses and objections to the first set of requests for productions on October 23, 2023, but did not produce documents with its response or provide a date on which it would produce documents. The Court then denied defendant’s motion to quash the subpoena on October 26, 2023 and compelled Cardamone to respond to the subpoena. On November 7, 2023, plaintiff filed this motion to compel seeking production of documents in response to the subpoena, to have the Court overrule defendant’s objections to their first request for production, and to compel Cardamone to immediately produce all documents responsive to the first RFP. I’m going to refer to Cardamone now as defendant, just to make it a little bit easier in understanding parties.
The defendant then produced some documents on November 9, 2023, leaving objections to nine requests for production at issue, as well as the plaintiff’s request for attorney’s fees on the motion to compel. So that’s what we’re before the Court here on — those existing nine requests for production that the defendant objected to.
Analysis
The Court begins its analysis with the language of Rule 26 — that discovery must be relevant, non-privileged, and proportional, and that the party moving to compel carries the burden to show that the discovery sought is relevant. The Court then waded into the individual requests and the objections at issue.
Request No. 7 from plaintiff sought ESI from three corporate email accounts at defendants responsive to a boolean search query that plaintiff provided as part of the request. So, a specific search query that plaintiff put in their request for production, asking for documents responsive to that query for three specific corporate email accounts.
The defendant objected to the request “on the basis that it is vague and incomprehensible as written. For this reason, Cardamone is not providing any documents responsive to this request unless and until it can be clarified.” The Court overruled defendant’s objection, finding that it did not explain how the request was vague or what defendant failed to comprehend about the request. Now that one seems pretty obvious to me.
The Court also dismissed production issues related to the client’s lack of knowledge of ediscovery, finding that “while Cardamone’s client may be unfamiliar with electronic discovery practices, it is its counsel’s responsibility to assist with this process.” In doing so, the Court cited to EEOC v. M1 5100 Corp., the case that we covered on our first episode of Case of the Week back in 2020, which held that “The relevant rules and case law establish that an attorney has a duty and an obligation to have knowledge of, supervise, or counsel the client’s discovery search, collection and production.”
The Court next turned to Requests No. 8 and 9 sought by the plaintiff, which pertain to the traffic by visitors to a website — www.bitcoindepot.com — including impressions, clicks and hits. The requests also stated that it should include traffic by visitors within the state of Florida.
The defendant objected, stating that the request was “vague and incomprehensible.” The Court again dismissed the defendant’s objection as boilerplate and found that:
A fair reading of the Request shows that Cardamone wanted documents showing how much traffic Bitcoin Depot’s website received each month and year while it was a client of Cardamone. If Cardamone did not track website traffic in that manner, it should have stated as such in its Response.
The Court then turned to the next objection, which was for Request No. 11. That request sought ESI pertaining to invoices, statements, payments, wire transfers, credit card receipts or transactions and other financial records exchanged between the parties. The defendant objected to the request as over broad and not proportional, but provided no specifics as to why. The Court again dismissed the objection as boilerplate.
The next request, Request No. 13, sought ESI pertaining to online advertising, social media advertising, or keyword advertising, including, without limitation, Google sponsored ads or Google Ad words. Cardamone again objected to the request as vague and not proportional, but only offered a further explanation in its brief in response to the motion, then claiming that:
There are likely thousands of emails, texts and Slack messages potentially responsive to this request, but which have no relevance to the issues in this case. Searching through all these messages and reviewing them for which would be relevant would take one or both of Cardamone’s two employees many days of research, and would substantially impair Cardamone’s ability to meet its day-to-day business obligations.
I’m just going to leave that there. Seems like an odd response for a company who is a party in litigation. The Court rejected Cardamone’s objection as boilerplate and found that the topics requested “bear directly on the trademark and false advertising claims at issue in this lawsuit, where Plaintiff alleges that Defendants conspired to use Plaintiff’s trademark in digital advertisements. Moreover, participating in discovery is often by its very nature burdensome. The suggestion that there are “likely” thousands of documents that may take “many days” to review is insufficient for Cardamone to meet its burden as the objecting party.
The plaintiff also sought costs for the motion on both the subpoena response and the first set of requests for production. The Court denied the motion as to the subpoena, finding that Cardamone produced documents in a timely fashion, but did grant the motion for costs on the first RFP under Federal Rule of Civil Procedure 37(a)(5)(a), finding that Cardamone’s use of boilerplate objections were not substantially justified and its unpersuasive post hoc justifications for its boilerplate objections were not persuasive.
The Court then ordered Cardamone to produce documents consistent with its order within 14 days. So essentially, Cardamone comes to the Court with very little on a basis for objections, and the Court denies all of its objections, overrules all of them and grants in favor of the plaintiff on the motion to compel.
Takeaways
What are our takeaways here?
Well, in essence, there was no need for this motion.
We’ve talked about this multiple times on the Case of the Week. Remember on last week’s episode when I applauded the efforts of counsel, who worked together meaningfully to create an excellent outcome? Not so here. Counsel for Cardamone here was the opposite of cooperative and sophisticated, and they paid for it in having to cover the costs of a motion.
The result here is just delay in the matter and additional costs for the client. The client will now pay for them to redo their discovery responses, incur all the costs to comply with them, and pay for the costs of plaintiff’s motion.
I don’t see the upside of the conduct given rise to this motion. It implies that we’ve got inexperienced counsel who don’t understand the evolution of ediscovery case law over the last ten years. The amendments to Federal Rule of Civil Procedure 34 in 2015 changed the language of the rule to require specific objections to each discovery request. It not only eliminated the blanket list of general objections that most parties include prior to the individual responses, but required that an objection to an individual discovery request “explain its reasoning in a very specific and particularized way” relevant to what the request seeks.
If you are still using general objections, or if you are not stating specifically why you object to a request and how it bears on the relevance or proportionality of the facts of the case, you’re going to have your objection overruled. Read this decision, as well as a long line of cases starting with Fischer v. Forrest from 2017. You can use the issue tag General Objections within eDiscovery Assistant to be able to highlight those cases.
The types of data sought here to prove plaintiff’s case are becoming increasingly common, and counsel need to start understanding what exists and where they need to go to get it. We’re talking about a lot of the advertising and marketing tracking data. We are completely immersed in an online world now. We shop online, we order cars via an app, we do banking online, we socialize online, and every single activity of that work is tracked, whether for marketing or sales or to build your own following, all of the steps that we take online are recorded somewhere. What you watch, how long you spend on it, what you pause over on your feed, what you click, it’s all tracked. Web traffic is vital to selling products online. It is only reasonable to acknowledge that data that is being tracked will be relevant to infringement litigation — like this matter — and it will have to be provided. So learn what data exists, where it lives, how to go and get it, and what your client’s practices are so it can be provided on motions like this one, and these motions can be avoided.
Counsel has obligations under the Federal Rules, and those obligations do not change or become relaxed when they have a client that is not educated on electronic discovery. Instead, it is incumbent on counsel, as cited in the M1 5100 case, to assist the client in meeting those obligations. Here, Cardamone attempted to leverage its client’s lack of experience with ediscovery as an excuse for its failure to comply, and the Court was having none of it. That’s not going to fly. We’ve had these rules for more than nine years, and the original amendments for almost 18 years. It’s time to get on the train or it’s going to leave without you. At this point, you need to be in a full out sprint to catch it before it leaves the station.
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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