In Episode 145, Kelly Twigger discusses the Court’s ruling on multiple issues in the parties proposed ESI protocol in the latest decision in In re: Insulin Pricing Litigation, including another chapter in the saga of hyperlinked files and how existing technology impacts a party’s obligation to provide them in discovery.
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 today, 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.
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 and what you need to be thinking about as you conduct discovery of ESI.
Let’s dive into this week’s case, which comes to us from the class action case titled In re: Insulin Pricing Litigation. This litigation is very complex and covers many sources of data that would have been created at multiple types of entities, and the ESI protocol at issue reflects that complexity. Even though your case may be simpler in terms of parties and sources of ESI, there are great takeaways from this decision that will help you issue spot as you go through discovery in your matters.
This decision comes to us from United States Magistrate Rukhsanah Singh from the New Jersey District Court. Judge Singh has 19 decisions in our eDiscovery Assistant database. The issue tags for today’s decision include Email Threading, Hyperlinked Files, Redaction, Cooperation of counsel, Technology Assisted Review, Proportionality, Form of Production, Inaccessible, Manner of Production, ESI Protocol, Native Format, Metadata, Search Terms and Protective Order.
Facts and Analysis
We are before the Court today on the parties’ disagreements over multiple provisions in the proposed ESI protocol to govern this case. Note that the parties have already agreed to, and the Court has signed off on, a Stipulated Confidentiality Order that governs the case and will impact some of the Court’s decisions in this ruling.
The decision covers eight different topics, some with sub topics including the Scope of the Protocol, Prior Productions, Pre-Production Information Exchanges (about custodians and data sources), Search Methodologies, Email Threading, Hyperlinked Files, Redactions and Production Format. Despite the number of topics, the decision is concise, and I recommend you take a few minutes to read it.
In order to keep it concise, however, the Court omits a number of facts on certain topics that make it difficult to really discern the scope of the decision on that issue, and therefore to apply it more broadly. We currently only have the confidentiality order in the case, so nothing to really draw additional facts from to assist with our analysis. That being said, several of the issues she addresses are worth covering and I’ll touch on each of them.
Scope
Let’s start with the scope of what the proposed protocol will cover. This is an issue specific to this litigation because there are other actions that are further along in the process, and it’s a key one to consider if you are dealing with an MDL with other, related actions. Here, Magistrate Judge Singh found that other actions already had protocols entered, and limited the applicability of this one to the MDL cases. She also found that it applied to all parties, rejecting plaintiffs’ argument that there be carve outs for specific plaintiffs while still allowing a “carve out’ for a situation as needed.
Interestingly, the parties disagreed over whether to use “relevant or responsive” or just “responsive” in specific areas of the protocol. The Court does not provide specific examples of where that modifier would live in the protocol, so it’s difficult to understand the difference in meaning as it applies in this specific context. But the Court does note the difference between the terms — relevance is broader than responsive. ESI may be relevant and a party can seek any relevant discovery under Rule 26, but relevant data is not always responsive to a request under Rule 34. Again, lack of context here makes it difficult to understand the ruling, but the Court found that “including language in the ESI Protocol that could be read to impose added obligations as to all potentially ‘relevant’ material runs the risk of injecting confusion and potentially more disputes over what is “relevant” for purposes of searching, culling, and producing ESI.” As such, the Court adopted the “responsive” language.
Search Methodologies
I’ll tell you out of the gate here that I love the Court’s approach here. The parties disagreed over the process for identifying search terms. There is always a concern by defendants about micromanagement of the process, and it’s a legitimate one. Parties have spent months fighting about search terms, most often because of a combination of a lack of transparency and a belief that there has to be more responsive documents than what is produced. The Court here agreed that an iterative process with cooperation is required and gave the parties this language to include that requires the producing party to provide an initial set of terms and then for the parties to discuss them:
If a Producing Party elects to use search terms to identify potentially responsive documents and ESI, it shall identify and propose to the Requesting Party an initial list of search terms, custodians, custodial data sources, and non-custodial data sources that are likely to contain responsive documents and ESI, and the Parties will meet and confer regarding those terms and any additional terms, or other requested changes, proposed by the Requesting Party. That meet and confer shall include, when requested, the exchange of information that includes, where relevant, semantic synonyms, code words, acronyms, abbreviations, nonlanguage alphanumeric associational references to relevant ESI, any hit count reports, and any other information agreed to by the Parties. To the extent the Parties cannot reach agreement on the application of, or procedures for, any search or filtering processes, the Parties may raise such issues for resolution by the Court or its designee.
This is great language for you to leverage in your matters. There’s no good way for a non-producing party to identify search terms. Don’t do that. When you’re having the discussion, ask specific questions and it’s helpful to have someone who can test the database with the revised queries on the call. Record it for posterity in case there are disputes later. The only real way to resolve these issues is by looking at the data. Going back and forth and back and forth is a waste of time and amps up tensions.
The parties also disagreed over whether defendants could use TAR in review following the identification of search terms. We’ve seen this issue multiple times on Case of the Week, and largely courts have said you can use both with some exceptions. But the Court here punted the issue down the road, saying that the parties do not yet know what they are going to use.
Email Threading
This one is the age-old question — can we produce the last, most-inclusive email in a thread and not provide metadata for the other emails in that same thread? As I would hope, and consistent with case law, the Court allowed defendants to leverage email threading for review, but required production of all emails with metadata for threads.
Hyperlinked Files
And now to the good stuff, the ongoing saga of hyperlinked files. As has become tradition in these cases, plaintiffs sought production of hyperlinked files as part of the family group, meaning that they would be treated the same as documents that are physically attached to a message, with metadata provided that would identify the familial relationship. Defendants argued, and provided eight separate affidavits in support of their position, that there are significant technological limitations both in producing the documents at hyperlinks and maintaining any familial relationships.
Citing to Judge Hixson’s decision to modify the ESI protocol in In re StubHub Litigation that we covered last week on Case of the Week, as well as to Nichols v. Noom (Episode 20), In re Meta Pixel Healthcare Litigation (Episode 115), and In re Uber Tech., Inc., Passenger Sexual Assault Litig. (Episode 141), the Court held that “hyperlinks are not the same as traditional attachments” and adopted the Defendants proposed language for the protocol. That language is not provided in the Court’s decision, though, so there is no guidance for us on it.
Redactions
Defendants here seek redactions for non-relevant data, PII and the names of non-employee members of the P&T Committees at issue in the case. The Court, relying on a long string of decisions, declined to allow redactions for relevance, found that the Confidentiality Order in place dealt sufficiently with the PII issue and permitted redactions for the names of the non-employee committee members at risk of exposure based on a particularized showing from defendants.
Form of Production
“The parties dispute over form of production comes down to one of our themes here on Case of the Week — to win an argument on discovery, you have to make a specific factual showing. Plaintiffs here sought language requiring “a producing party produce ESI in color and native format (instead of Tagged Image File Format (“TIFF”) or TIFF-plus images), including all spreadsheets, presentation files, PDF files, “media” files, and word processing files that contain track changes, comments, hidden text, or embedded file types.” They argued that such native production will enable the retention of metadata that could be important to understanding the files and that color will preserve context of the information.”The parties dispute over form of production comes down to one of our themes here on Case of the Week — to win an argument on discovery, you have to make a specific factual showing. Plaintiffs here sought language requiring “a producing party produce ESI in color and native format (instead of Tagged Image File Format (“TIFF”) or TIFF-plus images), including all spreadsheets, presentation files, PDF files, “media” files, and word processing files that contain track changes, comments, hidden text, or embedded file types.” They argued that “such native production will enable the retention of metadata that could be important to understanding the files and that color will preserve context of the information.” What they didn’t say, though, is why TIFFS with metadata or black and white will provide them LESS information than defendants have.
Defendants, on the other hand, argued for productions to be made in TIFF or color JPG image format, except that a producing party would produce in native format spreadsheets, audio/visual/multimedia, and other files not conducive to an image format. Defendants also proposed that productions be made in black and white, but allowed a receiving party to request certain files in color. Defendants argued that their approach was more consistent with typical practice and balances the cost and burden of producing a large volume of color and native format ESI.
The decision does not note whether either party provided actual cost figures on producing color images. But the Court, relying on the Sedona Principles (last updated more than five years ago) held that “production of such a large volume of ESI in color, native format can prove unwieldy and costly.” The Court found that plaintiffs had not “shown that they would be unable to fully access, cull, and use ESI in TIFF, TIFF-Plus, or JPG format,” and adopted defendants’ language for the protocol.
Takeaways
What I love about this decision is that we have a Court and parties aggressively planning for and thinking about discovery issues very early in the case. That’s one of our themes here on Case of the Week and for good reason — the earlier you think about these issues, the better equipped you are to consider the sticking points and address them prior to production. The benefits are too many to count, and you can think of them as dollars. The more prep you do up front, the likelier you are to be able to move forward in discovery faster, and spend less time and money on disputes.
Note the Court’s approach on search terms here. It’s consistent with what we’ve been seeing in that the producing party should provide the initial search terms. Follow that approach. Cooperate in an iterative fashion. And get on the phone and discuss with someone accessing the data to get real time answers. You don’t have to show the other side your results as you test, but do it in real time. Stop the back and forth that takes months and doesn’t move things forward effectively. Be transparent. Your clients should appreciate it.
The Court’s ruling here on the hyperlinked files issue is consistent with the other decisions — all of which we’ve covered on Case of the Week — and with the current state of technology. What I like the most about Judge Singh’s language here is that she says “traditional attachments”. That’s different from other courts who simply say hyperlinked files are not attachments (see Noom, In re Meta, etc.), and it’s a BIG difference. Of course hyperlinked files are not traditional attachments, they are simply NOT attached to a message the way that we used to have attachments. But that does not mean the familial relationship here is not relevant, it’s just not possible to preserve it with existing technology. The technology will improve, but in the meantime, it would be wise for parties to understand the sources of ESI at issue (Teams, Slack, Google Mail, etc.), what can be done with existing technology for each platform, and license related issues that impact those collection efforts (i.e. E3 vs. E5 license from Microsoft). Until further technological advances occur, this is a costly and fruitless dispute. Don’t get me wrong, I 100% believe that the receiving party should be entitled to this information. But the Federal Rules only provide for what is reasonable, and if technology doesn’t allow the collection of this data, or with the familial relationship intact, it’s not reasonable to have to provide it.
The dispute over redactions here is a standard one, but one that is becoming more and more commonplace as our electronic communications become more off the cuff. By that, I mean we send text messages, Signal and WhatsApp messages, Slack messages, email, etc. without thinking out the full scale ramifications of that data being produced in discovery, and they often contain data that is confidential business information, not relevant or include personally identifiable information. Relevance is the biggest issue, and courts have been reluctant to allow blanket redactions. That means it’s up to counsel to know what potential issues you have that require redaction and plan for them UP FRONT. It’s not discussed in this decision, but ensuring proper metadata fields for redactions is also key in negotiating an effective ESI protocol.
Two things leaped out at me about the Court’s ruling on form of production. First, there is NO cost to produce in color. There may have been the last time the Sedona Principles were updated in 2018, but the Court’s reliance on them for that principle, if that’s what happened here, is misplaced. There is a cost to PRINT color, but not a cost to produce documents in color. I disagree with that decision — often color is huge in determining the emphasis or importance in a document. Black and white TIFF images are a relic of the past. I also disagree that the cost of producing in native format is unreasonable or overly burdensome.. A receiving party should get the same benefit of the information that a producing party has under the Federal Rules. Changing the structure of the data — converting it to TIFF from native — and precluding the receiving party from the data in the original native format as with documents with tracked changes means the receiving party gets less than what existed. Is that fair or what is intended under the Federal Rules when there are no cost impediments to doing so? I’m interested in your thoughts.
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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