In Episode 150, Kelly Twigger and David Horrigan discuss what we’ve seen since the 100th episode and the key issues plaguing litigators and legal professionals everywhere in ediscovery.
Introduction
Hi, and welcome to this week’s episode of the 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, and I’m very excited to have joined me today my colleague and friend, David Horrigan, who is the discovery counsel and legal education director at Relativity. David, thanks for being here today.
David:
Hey, Kelly, thanks for having me. I really appreciate it. Greetings from sunny Chicago, Illinois.
Kelly:
Coming to you from Boulder, Colorado. This should be a lot of fun today. I really appreciate you diving on for us. I know your schedule is packed and it’s a huge honor to have you with us. So thanks.
What are we going to do today? We are celebrating the 150th episode of the Case of the Week series. I’m blown away, frankly, that we’ve done this 150 times. David, you were with us for the 100th episode anniversary, and we thought as a follow up from that we would talk with everybody about what’s happened since the 100th episode. And so we’re going to dive through a number of cases, but mostly focus on high level themes. We’re going to start by doing that with a couple of classic cases. We picked classic cases from the first 100 episodes and themes of Case of the Week. Links to all of the episodes we talk about are also in the eDiscovery Assistant newsletter which comes out on Thursdays. If you’re not signed up for that newsletter, you can jump to eDiscovery Assistant and sign up there.
First we’re going to do some classics, and then we’re going to dive into the themes that we’ve seen over the last 50 episodes, really over the last year. So let’s start with some classics. David, I’m going to kick it over to you. You wanted to touch on the first one.
Takeaways from Classic Cases in Episodes 1-100
David:
When going through the data, by the way, for those of you who are eDiscovery Assistant users, if you go into the Academy and you want to see all the cases at once, just do a search for Case of the Week, and don’t put any filters on it, and all 150 of them will come down there for you. That will include Martley v. City of Basehor. This is a case on third party subpoenas under Rule 45 of the Federal Rules of Civil Procedure. One big takeaway is that there are a surprising number of Rule 45 cases, third party subpoena cases. It’s really important in ediscovery, because the data are often in different places. We always think of the trinity from 2015, sanctions, proportionality, and, of course, everything else that comes into the world of cooperation. But third party subpoenas are up there. So it’s something to remember. And this one involved a police chief who sued for gender discrimination. He was replaced by a female replacement and he believed it was gender discrimination. The city had arguments against that, saying, you know, she’s doing two jobs, she’s the administrator as well as the police chief.
But here’s the big takeaway; I think most would admit, and the Court admitted, that the discovery production by the city was not exactly the greatest in the world. The police chief decided to do an end run around him and went straight to the IT vendor and did a Rule 45 subpoena. Take away from Martley is — you can’t do that, at least not under these facts and in this particular case. No end runs around the discovery process to try to go straight to the IT vendor is my biggest takeaway on that, in addition to, hey, third party subpoenas are important.
Kelly:
Yep. And we’re going to talk about that a little bit in the themes. Thanks, David. The other takeaway from Martley is that there’s a big discussion of whether or not a defendant has an ability to move to quash a third party subpoena. So I think from a standing perspective, it’s a really interesting case to take a look at. That one was Episode 75 on the Case of the Week.
The other one we wanted to talk about, and, David, I’m happy if you want to take this one, was Episode 1, which is a case that we often discuss, which is the EEOC v. M1 5100 Corp. case.
David:
This is a story as old as ediscovery law, and it’s the issue of self-collection. This one has a truly egregious fact pattern of alleged age discrimination. It involves a small supermarket chain, JUMBO Supermarkets, Inc., in South Florida. But the issue here comes down to self-collection. Judge William Matthewman, who Kelly and I have had the honor of being on panels with at programs — University of Florida, Relativity Fest — just an amazing jurist, U.S. Magistrate Judge for the Southern District of Florida. This one is on self-collection. Over the years, you’ve heard the mantra — self-collection is a no-no — but it’s more nuanced than that. And this one is telling us that self-collection is the real problem, but it’s unsupervised self-collection. With the amount of data that we have today, you’re going to need some help from your clients to get the data. But they need technical assistance. They need legal assistance because you, as counsel, or you as the paralegal in the case working with the attorney, know what the rules are, and you need to go in and advise the clients. The big takeaway from this one is the unsupervised self-collection.
Kelly:
And M1 5100 continues to be the decision that is cited on self-collection across the country. Judge Matthewman is incredibly thoughtful, an excellent writer, very articulate in the facts that are relevant to an analysis. There are never holes in his opinions. I highly recommend taking a look at what he writes. The M1 5100 case is key.
David:
One thing about Judge Matthewman, and I might like to admit — go Gators! — I am biased at the University of Florida. But from the Florida Law Review, Judge Matthewman wrote an article a few years ago, his new paradigm for ediscovery. And there’s ten cores that you want to take a look. That is available at the Florida Law Review website. Judge Matthewman really gives you a playbook for ediscovery on that one, so it’s worth taking a look.
Kelly:
Okay, so three other cases, or collections of cases, that I would recommend for you from a classic perspective.
One is what we call the DR Distributors saga. DR Distributors was a monumental decision which came out January 19, 2021. And so we covered those early on Episodes 12 and 13. We also subsequently covered it on Episode 74, Episode 84, and Episode 94. So it’s worth looking at those cases. United States District Judge Iain Johnston from the Northern District of Illinois really digs into sanctions where you have intentional conduct, intentional failure to preserve, intentional destruction of data, a lot of lack of communication between client and counsel, and a lack of knowledge by counsel of what their obligations are in ediscovery. The first decision from January 19, 2021 is very, very long, but it’s very compelling, and it lays out for you every way in which sanctions are available. So it’s not just about Rule 37, it’s about every way courts’ inherent authority, all the rules. It’s a worthwhile read because it’s worth understanding what you need to be thinking about in terms of sanctions and how you can make arguments if you don’t have a Rule 37 argument. So I definitely recommend that one.
Two other decisions to think about. One is Red Wolf Energy Trading, LLC v. BIA Cap. Mgmt., LLC. That one is Episode 81 on the Case of the Week. That was an entry of default judgment for failure to abide by multiple court orders under Rule 37(b). We’re going to talk about that in our episodes since Episode 100, or our discussion of themes since Episode 100, I should say.
And the last one is Hunters Capital, LLC v. City of Seattle, which, if you’ve been following Case of the Week, you’ve heard me talk about a lot. I think we discussed it on last year’s case law panel at Relativity Fest. This is an important one on text messages and the failure to preserve text messages, which is another theme that we see carrying through all of the case law over the last year. Hunters Capital is important because you had five executives who, through a wide variety of insane fact patterns, all managed to lose their mobile devices with all of the text messages relevant to the activities taken following the CHOP protests in Seattle after the death of George Floyd. It’s a very compelling decision about the ability of a court to determine intent from actions that don’t appear to be intentional on their face. And that was a huge turning point in the sanctions analysis that will carry through what we’re going to discuss with what we’ve seen since Episode 100. David, anything to add there?
David:
I know we’re going to talk about sanctions later in the program, so I’ll give it a light touch. But the biggest takeaway here, and we’ve been saying this for years, there is more in the judge’s toolbox of sanctions than Rule 37(e). And we’re going to talk about that later in the program. But remember, if you violate a court order, that brings in Rule 37(b), as in “bravo” and the whole playbook and rules are different on that one.
Themes from Episodes 100-150 of Case of the Week
Kelly:
Right. And there are other sections of Rule 37 too that we’ll cover.
So let’s shift to what we’ve seen since the 100th episode, the last time you joined us. There were several themes that, if you’re a regular follower of Case of the Week, I’m going to sound like a bit of a broken record to you, but really key themes, so keep these in mind.
First, text messages and mobile device data are showing up in just about every case. You need to know the data sources at issue and have a plan in place to be able to capture them, collect them, be able to produce them, and leverage them at trial. So that means authentication. So the way that which you go about collecting them and that information has a tremendous effect. Mobile device data, social media data has also some of the same intricacies associated with that.
Next, the timing and handling of third party subpoenas has become very, very crucial. We’ve seen multiple decisions of courts saying to parties, sorry, you waited too late, you needed to do this earlier. You needed to give them a reasonable time to be able to respond within the close of discovery. You didn’t do that, so you’re stuck with what you have. You can’t ask for anything else. It’s really important. I think it’s not only important because of that, but strategically it’s important because if your merits counsel doesn’t have the data from the third-party subpoenas, they’re often hamstrung at depositions. They cannot do a good job working up the case unless they have all of that data early and they can coalesce it with the data they have from their client and the other side to be able to present an accurate picture during a deposition and ask the questions that are needed. Anything, David, that you’ve got on either of those themes?
David:
You know, I think you hit it really well. Text messages in every case. If you look back, there was a case out of Nevada, Hinostroza v. Denny’s Inc., that was one of the early ones where they wanted everything in the kitchen sink — the Fitbit data, the text messages, the biometric data. So we just continue seeing this theme, and it is a rare event where you will have a discovery matter where text messages are not there. It is no longer the exception but the rule in most cases.
Kelly:
Yep, I completely agree. Moving on to additional themes.
Courts are very much enforcing the 2015 changes to the Federal Rules that eliminated general objections. You need to revise your templates. You’re now required to use specific objections. We’ve seen multiple instances where the court has found waiver when only general objections are asserted. Even if you put what you call a general objection on the specific request for production as a response, if it’s not specific enough, courts are tossing them. They’re saying, nope, you waived that objection. We’ve seen situations where it’s been highly problematic for parties’ cases in that situation. The other thing that came out of the 2015 amendments is the annihilation of “reasonably calculated to lead to the discovery of admissible evidence”. That is no longer the language to be relying on. It is “relevant.” Relevant is your new guidepost.
David:
Kelly, that is so important because the frustrating part, I think, for a lot of judges is that this is nothing new. It has been almost a decade since the 2015 amendments. I think Magistrate Judge Peck may be with us viewing today. Turn the clock back to 2017 and his decision in Fischer v. Forrest. If that case caption doesn’t ring a bell, it’s the beekeeper’s trademark dispute where there was Bee-Quick going on. Magistrate Judge Peck at that time called it the “wake-up call”. You can’t do the boilerplates anymore. Rule 35 has changed. You’ve got to have some specificity. The general objections won’t work. In fact, he called that one the wake up call. You may recall his first wake up call was way back in 2009 in William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co. Like, hey, you got to be careful using keywords. My, how times have changed. But this prohibition against just doing boilerplates is now really old and the judges are just not putting up with it anymore.
Kelly:
I would agree. I love that you called out the Fischer v. Forrest case because I thought about adding that one to our classics. We’ll make sure that one’s included for everybody to be able to reference. Additional themes:
Don’t neglect your obligations to provide and supplement initial disclosures under Rule 26. Rule 37(c), which I’m not sure if I pulled the case on, but under Rule 37(c), a failure to supplement under your initial disclosures can lead to sanctions. And we’ve seen at least one decision where that’s happened. So it’s really critical that you’re doing that. I think that was the Beacon Navigation GmbH v. Bayerische Motoren Werke AG case where that issue was raised. I think ultimately the sanctions were not granted. We didn’t include that in our list, but I’ll be sure to include it in the post for everybody to be able to reference.
Next theme — Do not underestimate your judges knowing and understanding the complexities of ediscovery issues. The knowledge and breadth of the bench has grown dramatically, especially on sanctions issues. Make sure you understand each section of Rule 37 and the state equivalents and what your obligations are, as well as what kinds of sanctions you can seek.
I talk a lot on the Case of the Week about using a strategic approach to setting up your case, your motion to compel, in order to be able to get an order to be able to use for sanctions under Rule 37(b) because it doesn’t have the intent requirements. So, know that you’ve got to get in the mix now. It’s really hard to get up to speed on the moment, and so knowing and understanding these decisions is going to help you make a lot of strategic calls early on in your case so that you’re setting yourself up for success if there is a discovery issue that needs to go to sanctions.
David:
Kelly, I thought you had a great line in passing there on “and their state equivalents”. Historically in the world of ediscovery, we’re obsessed with the federal courts. We cite the Federal Rules of Procedure, Federal Rules of Evidence, 502(d) sometimes. But the state courts are where the overwhelming majority of litigation occurs. And there are some very savvy state court judges — Judge Michelle Rick out of Michigan, Judge Ralph Artigliere is retired from the bench now, but I think he’s a frequent viewer of the program and he writes extensively on e discovery issues. And judges listen to Judge Artigliere and Judge Rick when they’re talking about these things. So do not underestimate the importance of ediscovery in the state courts. The judges really do know the stuff a lot of times, not like they do perhaps in a lot of the federal courts, because there’s a lot of larger cases, but state courts often are where the action is.
Kelly:
A couple two responses to that, David. One, Judge Alison Goddard, who I think is joining us at Fest this year, and who I did a really great podcast with me back in December on ESI Protocols. She’s even said — look, you think that we deal with ediscovery as federal judges in every single case? No. We deal with them in less than 10% of our cases. So you’ve got to bring this stuff to us. I’ve got to know that you’re on top of it. These are counsel’s obligations, not the court’s obligations.
One of the things that we have done, if you’re an eDiscovery Assistant user, you can use the judge field to be able to sort, to search and sort by your judge’s decisions so you can get a firm understanding of where the judge falls on their analysis of these issues and what they look to the parties to bring them in terms of facts on specific things, particularly as it pertains to proportionality.
Which leads me to my next theme — which is that proportionality arguments in the case law are requiring a very strong factual basis for the court to evaluate and find in your favor. If you’re just throwing proportionality at the wall to see if it’ll stick, it’s not going to. We’ve seen a lot of decisions on proportionality. I think, David, you raised the fact that proportionality is one of the largest issue tags in eDiscovery Assistant. Thousands of decisions.
David:
It absolutely is. Thousands and thousands of decisions since Case of the Week started 150 episodes ago. And Kelly, you make a great point. Not unlike general objections and using boilerplates, when you get down to that six-pronged test under Rule 26, you’ve really got to show something. Because in the rulemaking process they talk about, well, gee, is this going to be a sword or a shield? And is it going to create a whole bunch more litigation on litigation, they really talked about it on sanctions, but on proportionality also. So look at that six-pronged test, and you need to have some facts to back up each one of those six prongs if that’s what you’re using.
Kelly:
Facts on volume, time spent, technology that you’re using, whatever it is that explains why the process that you’ll have to undertake makes it an undue burden for your client is what you’re going to have to put forward. Just a random “it’s not proportional to the needs of the case” is not going to work.
Last main theme before we dive into some cases — understand the capabilities of your technology before you agree to anything. Whether it’s in writing, in an ESI protocol, you need to especially make sure that you know you can do easily and cost effectively what it is that you’re agreeing your client to. And that, of course, most often lately refers to the issue of hyperlinked files. That issue is going to kick us off into a little discussion of what’s happening on the hyperlinked files issue right now. David, you want to talk through what are the kind of the three things that we think about when we talk about hyperlinked files?
David:
Yeah, you know, hyperlinks are ephemeral by their very nature, so you’ve got to keep that in mind. But we really look at three things. If you have an order and if you’ve got a discovery request and you’re required to collect documents, including hyperlinks, is number one. And we talk about them being ephemeral, the version that you collect. And then, of course, three, as in every discovery matter, the metadata. Whether the metadata is required to show that the relationship between the family members and the linked documents. So thinking back, you know, the ball got rolling on this one with Nichols v. Noom Inc. in 2021. But we see these themes throughout the cases.
Kelly:
And hyperlinks don’t just apply to email. So most of the cases that we’re going to discuss talk about hyperlinks in email, but hyperlinks arise in text messages, Slack, Teams, Signal. Any place where you can add a hyperlink, you’ll have this issue of are you attaching a link to a file that then needs to be collected and established as a familial relationship. There are lots of arguments on both sides of this, and we’re not taking a position on whether you need to be doing these things or what’s available or any of that. We just want to talk through what the case law is, where we are.
And I’m going to tell you this, the biggest takeaway on the hyperlinks issue is that eventually, within two months, six months, a year, the technology is going to resolve this issue, and we’re not going to be talking about a legal analysis of it. Until then, the biggest takeaway is know your technology and what its capabilities are before you agree to anything. And that means you have to get into the data early, and I mean now, get in there, learn what you can do. These cases that we’ll talk about that I’m going to run through kind of quickly on a timeline here, they all deal with different technologies, and those different technologies impact those abilities to provide that information.
Following up on what David mentioned with Nichols v. Noom Inc., that kind of kicked us off. Judge Katherine Parker basically said hyperlinks are not attachments. A lot of people, including myself, sort of took issue with that particular language, but that’s what we had. Since then, we’ve had a total of, I think, 19 decisions in eDiscovery Assistant that talk about hyperlinks, some of the ones since our 100th episode of Case of the Week. The In re Google RTB Consumer Privacy Litig. was not an actual Case of the Week episode, but that was one where the plaintiff said to Google — hey, look, we picked out 500 links. We want you to go and investigate these and get the documents that are available at them. And the Court found, based on the information that had been provided, that that was sufficient and ordered Google to go and find those. Great example of when you need to be very specific and targeted about what you’re looking for and asking for it. We’ll see in some of these other cases examples of, you know, let’s call it “sampling” if you want to. We’ve identified these several hundred documents, we think these links will be relevant and we want the information that’s available from them.
Again, you still have two problems that David mentioned. One, is the version. Right? Which version are you going to get based on the technology? And two, is there any possibility of creating or having metadata field that ties the original message or email to the document that you’re getting?
The next case came up just four days later in In re StubHub Refund Litig. And this was kind of a fun one to discuss because StubHub agreed in the ESI protocol to provide all of the documents at the hyperlinks as well as metadata. And what it turned out was they couldn’t. So, in this initial discussion in Episode 109 of Case of the Week, the judge ordered them to produce all hyperlinked files. He said look, you agreed to this in your ESI protocol, so you have to do it.
We’ll see what happens in Stubhub in a couple of minutes after we jump to a year later in the In re Uber Techs., Inc. Passenger Sexual Assault Litig. case. That was a situation where the parties went to the Court to say hey, help us out here on what we should do on hyperlinks. The plaintiffs want us to agree to it. We don’t feel like the technology allows us to be able to do that. And so the parties really came to more of an understanding. The Court looked at the language that both parties were providing and the process and basically said “hey, we’re mindful of the burdens that Uber has here, but Uber is the one who decided to store their documents in Google Vault. And so we’re going to order that you do some investigation and production of documents from hyperlinks” and basically gave the parties the language to be included in their ESI protocol. So that was from April 23, 2024 and Episode 141 of Case of the Week.
Fast forward a week later to the next decision in the In re Uber Techs., Inc. case, and the Court publishes the protocol that the parties agreed to. And the reason I give this one to you, is that this is a great protocol to take a look at. I love the language in this protocol. I had some discussions with some of the lawyers who were involved in drafting this, and it was very, very thoughtful. The way it handles the hyperlinks discussion is one to be considered. I recommend it as a protocol to review. And I’m going to use this in quotes “model”, right? You cannot take someone else’s protocol and use it for your case, you have to adapt it. You have to think about the individual issues in your case. But I do love a lot of things about this protocol. It does not include a 502(d) order. So if you want to include a 502(d) order in your protocol, there are other examples that you can look to. We’ll provide some of those as well.
Fast forward two more weeks later to May 20, 2024 and In re StubHub came back to the Court and said Judge, you ordered us to produce all these hyperlinks, but we just can’t do it. The data just doesn’t exist. This information isn’t there. The difference between In re StubHub and In re Uber Techs. was that StubHub had information in active Google apps and Uber had information in Google Vault. So different technologies, different capabilities in the ability to go in and get those hyperlinks and be able to provide any metadata associated with them.
The big thing in the second decision in In re StubHub is the Court said look, you guys put language in your ESI protocol that says the protocol can be amended for good cause. And if you can’t do something you agreed to do, that’s good cause. So, essentially, the Court said the way you crafted the protocol was instrumental in really allowing you to get a get out of jail free card here. Now, I’m sure StubHub doesn’t feel that way because I’m sure they spent hundreds of thousands of dollars trying to make this process happen and agonizing over it and fights with the plaintiffs. But the key takeaway there is make sure if you’re going to enter your ESI protocol as an order, which is a whole other debate, then make sure that you’ve got language in there that allows you that get out of jail free card or the ability to amend it for good cause. That language is in, I believe it’s in a version of the In re Uber Techs. ESI protocol. We’ll make sure those are highlighted for you in that newsletter that we’ll send around.
Big takeaways on hyperlinks:
- Know what your technology is;
- Do not agree to anything that you don’t know you can actually do;
- Make sure that you have your good cause requirement in your ESI protocol in case what you do agree to can’t be met for some reason;
- and perhaps what I think is the most important, Make sure you’re following what’s happening with the developments of the technology on this issue, because I think your obligations are going to change as the technology gets better.
That’s what I had on hyperlinks. David, you want us to switch us over to what we were going to hit next?
David:
Yes, and that is just revisiting sanctions. Remember, the judges have more in their toolbox than just Rule 37(e). You’ve got Rule 37(b) for violating a court order, Rule 37(c) for failure to supplement initial disclosures. And Judge Jay Francis, who’s now with JAMS, retired U.S. Magistrate Judge, came out in the Cat3 litigation years ago saying that courts do retain their inherent authority, no matter what the committee notes may say. And there have been cases on this one. When you’re going through eDiscovery Assistant, check out Episode 129 on Beacon Navigation GmbH v. Bayerische Motoren Werke AG, Episode 148 on Two Canoes LLC v. Addian Inc., and Episode 146 on Maziar v. City of Atlanta.
There are a couple of other ones real quickly. In re David-Vega is a Georgia state case. In re David-Vega is a case where, just remember, if you appeal a sanctions order, you might get more severe sanctions in this case. And the Georgia Supreme Court issued more sanctions on this one.
Barack v. Rooster’s Guide & Outfitting Adventures, one of my favorite cases out of the District of Colorado. Remember a couple of things on this one, Signal use — ephemeral apps, their use by themselves does not establish bad faith. And the second thing out of this one is establishing the reasonable anticipation of litigation may be more difficult than you think. In this case, one party yelled “My lawyer and I are going to sue you.” The Court held that such an excited utterance was not something that you could base a reasonable anticipation of litigation on. So just remember, these are all fact-specific, and it can be very difficult on sanctions. And the big takeaway on sanctions is, remember, it’s more than just Rule 37(e). And then you’ve also got the difference between Rule 37(e)(1) and Rule 37(e)(2) on the intent that you’ve got to have to get to the most severe sanctions, the possible dismissal of the action. Go back in eDiscovery Assistant and you’ll see a Red Wolf Trading on that one.
Kelly:
Just a couple of more things on sanctions, and that is be aware of Rule 37(b), which is for violation of a court order. You don’t have the intent standard under Rule 37(b) that you have under Rule 37(e) for failure to preserve. We’ve also seen decisions this year for the first time under Rule 37(c) for failure to supplement your initial disclosures. That was the Beacon Navigation v. BMW case.
And we’ve seen a lot of discussion, and I’ve covered it a number of times recently on Case of the Week, of the difference between Rule 37(e)(1) and (e)(2) under failure to preserve. Rule 37(e)(1) requires prejudice and has its own set of sanctions. Rule 37(e)(2) requires intent. But we’ve seen an interesting development lately of, and I was discussing this with Judge Peck at the Masters in New York last week, of the judges letting the jury decide prejudice or intent. And that’s problematic from my perspective, and a little bit of a cop out, maybe. I think Judge Peck raised a great point, though, and that was that so few cases go to trial these days. So you don’t have that decision, that determination, of whether or not there are sanctions, which can often lead to settlement.
If you have an adverse inference instruction that’s going to push parties to settlement a little bit faster, or you’ve got a default judgment, or legitimate sanctions that really cripple the other side, that changes your strategy in a matter. In the Maziar v. City of Atlanta, which was Episode 146 that David mentioned, that one was interesting because the sanction that the judge issued for failure to preserve text messages was a denial of a summary judgment motion as well as costs, both on the sanctions motion but also on the summary judgment motion. So that was a small wrongful termination case that ultimately cost the city of Atlanta a lot of money because of a failure to preserve a few text messages. So let’s absolutely keep in mind the cost balance of preserving and collecting information with the value of the case. But in that situation, maybe you spend a full on Cellebrite collection of $1,500 or a ModeOne collection of $1,500 for a couple hundred thousand dollars in fees. It doesn’t seem like much of a trade off. So that’s sanctions.
There’s one more topic we want to cover. And I know we’re running a little bit longer today than our usual session, but I think it’s valuable. So let’s hit this one, David. Mobile device data.
We are seeing mobile device data in almost every decision that’s coming out of the courts right now. Whether it’s text messages, Signal, WhatsApp, we’re talking ephemeral, whatever it may be, we’re seeing all of these, right? And we know, or at least you do, if you watch me on Case of the Week regularly, that there’s no good way to collect from Signal right now. You can’t actually get the data out of the mobile device. So you have to be really creative about these things. And these are situations where if you know your clients are using a particular data source, you need to have a plan in place for them.
We’ve already talked about the Maziar case in terms of text messages. That was a failure to preserve literally just a few text messages related to one meeting from a supervisor who was at the city for more than a year after the duty to preserve attached. And then she left and, of course, deleted her phone and the city deleted her work phone, and thus they ended up with a huge sanction.
We did have a question on the sanctions issued in Maziar. Judge Peck raised a question as to whether or not the denial of a summary judgment motion was an appropriate sanction. But because that case probably likely will never be appealed, we don’t know whether that’ll ever get resolved.
The other case I brought up was the FTC v. Amazon.com, Inc. case (episode 149), and that one was primarily about Signal data with ephemeral messaging. And the issue there was that the FTC was seeking to know what information Amazon provided in its litigation holds around Signal and Wickr, which were two ephemeral messaging applications that were used by custodians. And the reason that that case is important is because not only is it about those mobile data types, but it leads us to another theme we’ve seen, which is courts are getting closer and closer and closer to the data around who the legal hold goes to and when it goes, and what those custodians are told about preserving particular data sources. Historically, those had been black letter law privileged, but it’s starting to erode a little bit.
David, any thoughts on mobile device discovery of what you’re hearing from judges with all the ones you talk to regularly?
David:
You know, the same thing that we’ve said before during the program. It is an issue in just about every case, and it is very rare when it’s not an issue. And the idea that you’ve got spoliation on mobile devices, the judges have heard it all. I mean, we’ve seen it in the case law here on Case of the Week. In the data discovery year in review, there is always a mobile case because there’s always something significant on there. So watch the phones and a lot of them are backed up now. I had one judge tell me that anyone on an iPhone, unless they’ve got the settings in a really unusual way, that data is preserved in iCloud. So, you know your device, know your client’s devices and what they’re using and whether or not there’s a corporate policy on how they back them up.
Kelly:
There’s a lot of forensics people out there shaking their heads like this at that statement by that judge. But I understand why he or she feels that way. I’m not sure that it actually plays out in real life that way.
David:
Exactly.
Kelly:
I know we’ve been a little over today, but that’s a very short overview of more than 5,000 decisions that have happened in the last year of our handling Case of the Week. Keep in mind the same themes that we discuss each week that should be the core of your ediscovery week. And you know the first three. I’m going to add a fourth today that we’re going to carry through Case of the Week going forward.
- Start early. If there’s anything we’re seeing from the case law, it means that you have to start even earlier than we were telling you to start two years ago. When you reasonably anticipate litigation may even be too late. The longer you wait, the more issues you’re going to face.
- Know the timeline your obligations start when the duty to preserve attaches. And if you wait until that duty arises to know those data sources, you’re probably already behind the ball.
- Document, document, document. Track the actions you take and the decisions you make. You’ll need it throughout the entire litigation process. We track everything in our work for clients, and we probably refer to it hundreds of times during a case about decisions that we make and the basis on which we make them.
- Our fourth theme, which I’m adding today, stay abreast of the developments in technology. As they evolve, your ability to get to data like hyperlinked files and Signal data will improve, but you need to know when this happens. We’ll provide that information at eDiscovery Assistant. David’s team does a lot of covering that. There’s a lot of sources out there to stay on top of it. But you also need to make sure that your service providers or your ediscovery groups are staying on top of those moving parts. It’s a lot. I know. It’s still your obligation.
David, I was going to turn to you for closing thoughts.
Conclusion
David:
My closing thought is a shameless plug! I hope our viewers will join Kelly and me at Relativity Fest for the case law update on September 26th. Judge Allison Goddard of the Southern District of California is joining us. Judge Peck, now of DLA Piper, is going to be on there, and Doug Austin of eDiscovery Today. We’ll be talking about some of these issues, including possession, custody and control is another big mobile issue courts are seeing. We’ll be talking about those September 26th at Relativity Fest. Kelly, it’s an honor to be on the program, and it’s an honor to have you join us for the case law update in September.
Kelly:
I’m looking forward to it. That panel is just star studded and I’m just privileged to be a part of it. Thanks for including me. And thanks again to you, David, for joining us today to mark this huge occasion of our 150th anniversary episode of the Case of the Week. It’s been so great.
Another huge thank you to Deja Miller, who is behind the scenes every week with ACEDS, putting this broadcast together for you. She does a tremendous job and she’s so wonderful to work with. We’re also grateful to everyone else at ACEDS for our continued partnership and to my team at eDiscovery Assistant, including Sue, who was mentioned earlier, Anna, Martha, Ella, and Jillian. We really appreciate everything that you do.
Most importantly, thanks to each one of you for tuning in every week to listen to the Case of the Week. And thanks for sharing with me the stories of who you watch with and what you take away from it. Please keep doing so. I love all of your messages and chats. If you’re attending Relativity Fest, please do join us for the case law session. Our team for eDiscovery Assistant will be there as well, if you’re interested in hearing about the platform.
I know I’ve mentioned this a few times, but our eDiscovery Assistant newsletter this week will include the links to all of the cases we’ve discussed today. So if you’re not signed up to receive that, you can hop to ediscoveryassistant.com/blog to sign up.
All right, thanks so much. Have a great week. And again, David, thanks so much for joining us.
David:
Thanks, Kelly. We’ll see you soon.
