Court Rejects Propriety of Non-Responsive Redactions, Compels Production

IDC Fin. Pub., Inc. v. Bonddesk Grp., LLC, No. 15-cv-1085-pp, 2017 WL 4863202 (E.D. Wis. Oct. 26, 2017)

In this case, the court granted Plaintiff’s motion to compel production of over 600 documents previously produced with extensive non-responsive redactions applied. Defendants argued that the redactions were necessary to protect confidential business information that was not relevant to the underlying dispute and cited In re Takata Airbag Prods. Liab. Litig., 14-24009-CV-MORENO, 2016 WL 1460143 (S.D. Fla. Feb. 24, 2016), in support of their position. In Takata, the court allowed certain non-responsive redactions “because of its concern that the documents contained competitively sensitive materials that may have been exposed to the public, despite protective orders.” In the present case, the court cited Burris v. Versa Prods., Inc., No. 07-3938 (JRT/JJK), 2013 WL 608742 (D. Minn. Feb. 19, 2013) for the propositions that non-responsive redactions are not explicitly supported by the federal rules and that allowing such redactions has the potential for abuse, where parties would be incentivized to “hide as much as they dare.” The court further reasoned that Defendants did not assert any privilege or provide a “compelling reason” for their “extensive” redactions and that they failed to explain why the existing protective order did not provide adequate protection. Thus, the court concluded that it “[did] not see a compelling reason to alter the traditionally broad discovery allowed by the rules by letting the defendants unilaterally redact large portions of their responsive documents on relevance grounds” and granted Plaintiff’s motion to compel.

A copy of the court’s brief order is available here.

Court Compels Production for Plaintiffs’ Quick Peek Over Defendant’s Objection

Fairholme Funds, Inc. v. United States, No. 13-456C, 2017 WL 4768385 (Fed. Cl. Oct. 23, 2017)

In this case the court granted Plaintiffs’ motion to compel a “quick peek” at approximately 1500 documents withheld as privileged pursuant to the bank authorization and deliberative process privileges despite Defendant’s strong objection.  In making its order, the court noted the parties’ agreement that the clawback provision in their existing protective order would be governed by Rule 502(d), precluding waiver, and also reasoned, among other things, that the quick peek would expedite resolution of the dispute and avoid the need for in camera review, which Plaintiffs would inevitably request if their motion was denied.

More than once in the course of discovery, Defendant produced additional documents when challenged, including documents previously withheld as privileged pursuant to the bank authorization and deliberative process privileges, leading Plaintiffs to argue that while they did not mean to suggest bad faith, “the rate at which another review led the Government to abandon its privilege assertions [was] troubling . . . ” and, ultimately, that the quick peek procedure “authorized by FRE 502(d)” was “the only way to ensure” that they received all of the documents to which they were entitled. Defendant strongly objected, arguing that it had undertaken a “comprehensive review” of the privileged materials and that compelling a quick peek was not the intended use of the rule.  In support of the latter argument, Defendant cited The Sedona Conference:

[FRE] 502(d) does not authorize a court to require parties to engage in ‘quick peek’ … productions and should not be used directly or indirectly to do so. … Rule 502 was designed to protect producing parties, not to be used as a weapon impeding a producing parties’ right to protect privileged material. Compelled disclosure of privileged information, even with a right to later claw back the information, forces a producing party to ring a bell that cannot be un-rung.

Defendant further argued that it could identify only one prior case in which such a procedure was compelled and that in that case the quick peek was ordered as an alternative to sanctions for an insufficient privilege log and failure to cooperate, which were not alleged in this instance.

Taking up the motion, the court first undertook substantial discussion of Fed. R. Evid. 502 and recognized the “general purpose” was to resolve longstanding disputes regarding inadvertent production and subject matter waiver and to address complaints about the cost of protecting privileged materials—“two issues not relevant to the current dispute.” The court also noted, however, that the advisory committee note specifically stated that “a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation” and went on to discuss the parties’ protective order, which included a clawback provision for inadvertent production to be “governed” by FRE 502(d).

Ultimately, citing Defendant’s “piecemeal” production and the desire to “facilitate the speedy and efficient conclusion of jurisdictional discovery” the court indicated it would grant Plaintiffs’ motion. Further explaining its conclusion, the court reasoned, among other things, that if it denied the motion, it had “every reason to believe” that Plaintiffs would seek in camera review which, “[g]iven the court’s heavy caseload and limited resources” made the quick peek procedure a “much more viable and attractive option” and that the quick peek would both relieve the court of the burden of in camera review and benefit the parties with a prompt resolution of the dispute.  Returning to the purposes of the rule, despite acknowledging their lack of relevance to the facts at issue, the court reasoned that the procedure set forth was “nevertheless helpful in the instant case” and that it had the authority to order its use.  Responding to Defendant’s argument that the disclosure would ring a bell that could not be un-rung, the court indicated that the robust protective order in place, which limited access to “protected information,” provided sufficient protection.  Finally, the court indicated that it was “unpersuaded” by Defendant’s reference to The Sedona Conference and explained its “sole purpose” for utilizing the procedure was to end the dispute and move the case forward, which was “eminently appropriate” in light of the court’s broad discretion and the parties’ “mutually-agreed-to protective order” already entered in the case.

Defendant was ordered to provide Plaintiffs with the opportunity to review the at-issue documents pursuant to the protocol laid out by the court.

A copy of the court’s full order is available here.

Citing Failure to Cooperate, Court Orders Use of Specific Keyword Search Terms

United States v. New Mexico State Univ., No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017)

In this pay discrimination case, the Court addressed Defendants’ motion for a protective order precluding further searching for responsive documents. Citing defense counsel’s failure to “adequately confer” before performing the initial searches, “which resulted in searches that were inadequate to reveal all responsive documents,” the Court concluded that “which searches will be conducted is left to the Court” and went on to order Defendants to conduct additional searches with specific terms, many of which were proposed by the plaintiff.

Plaintiff alleged that Defendants payed a female employee less than they were paying her male counterparts, despite similar responsibilities in the track and field program, and sought, broadly speaking, production of documents reflecting communications regarding her compensation; production of documents regarding her complaints concerning pay; and production of documents regarding any other complaints of pay discrimination made by other coaches, trainers, etc. Without adequately cooperating with the plaintiff, Defendants performed “more than 20” keyword searches and produced “more than 14,000 pages of documents.”  When Plaintiff indicated concern regarding the adequacy of Defendants’ searching, the parties were unable to resolve their dispute and Defendants ultimately moved for a protective order. Defendants argued that the discovery sought was not proportional to the needs of the case, noting the efforts already undertaken.  Plaintiff disagreed.

Indicating that this case presented “the question of how parties should search and produce [ESI] in response to discovery requests,” the Court reminded the parties that “[t]he best solution in the entire area of electronic discovery is cooperation among counsel” and that “[c]ooperation prevents lawyers designing keyword searches ‘in the dark, by the seat of the pants,’ without adequate discussion with each other to determine which words would yield the most responsive results.” In the present case, the Court concluded that the failure to confer resulted in inadequate searches and, acknowledging Plaintiff’s argument that “[Defendant] alone is responsible for its illogical choices in constructing searches” indicated that, “which searches will be conducted is left to the Court.”

As promised, the Court went on to discuss the three disputed discovery requests and identified specific search terms and custodians to be searched, many of which were proposed by the plaintiff. The Court also instructed the parties to work together to the extent necessary, if the non-responsive documents returned were too voluminous, for example.

The Court ended the opinion by returning to the topic of cooperation:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

[Citation omitted.]

A copy of the Court’s order is available here.

Court Compels Search of Additional Custodians, Notes Defendant’s Failure to Provide “Even a Rough Estimate” of the Alleged Burden

Mann v. City of Chicago, Nos. 15 CV 9197, 13 CV 4531, 2017 WL 3970592 (N.D. Ill. Sept. 8, 2017)

Plaintiffs sued the City of Chicago and the Chicago police alleging that they had been wrongfully arrested, detained and prosecuted and that they were abused at “off the books” detention centers without access to counsel. Although the parties agreed on search terms and the majority of custodians, they “reached an impasse” as to which custodians in the Mayor’s Office should be searched, including the Mayor himself.  Because the court found the information sought would be relevant and because Defendant did not establish the alleged burden of the request—failing to provide even an estimate—the court granted in part Plaintiffs’ motion to compel, including their request to add the Mayor.  In so deciding, the court also noted several proportionality factors, including the importance of the issues at stake and the plaintiffs’ lack of access to the requested information.

In these consolidated cases, Plaintiffs sought to establish the City’s liability for their alleged wrongful detention at an undisclosed facilities and thus sought to include custodians from the Mayor’s Office in the search for responsive materials in the course of Monell discovery (related to establishing municipal liability). The City proposed to search the emails of the two members of the Mayor’s staff “responsible for liasoning” with the police department and to “leave ‘the door open’” for additional custodians, but otherwise resisted Plaintiffs’ request claiming undue burden and Plaintiffs’ failure to “provide any grounds to believe that the proposed custodians” were involved with the police department’s policies and practices.

Summarizing broadly, the court concluded that in addition to agreed-upon staff liaisons, the Mayor and his “upper level staff” may also have responsive information justifying a search of their email. Addressing the alleged burden of the search, the court reasoned that the City did not “offer any specifics or even a rough estimate about the burden” and was unconvinced by the City’s argument that “it is impossible to determine how many emails there may be ‘unless the City actually runs the searches and collects the material.’”  Rather, the court reasoned that the City should have provided “an estimate of the burden” and that “other Rule 26 factors—the importance of the issues and of the discovery in resolving the issues, and the parties’ relative access to information and their resources—weigh[ed] in favor of allowing discovery of more than just the two custodians proposed by the City.”  However, the court declined to compel the search of four proposed custodians based on their “short tenure” or the “time during which the person held the position,” concluding the requested searches were “not proportional to the needs of the case.”

A full copy of the court’s opinion and order is available here.

Court Imposes Adverse Inference for Failure to Preserve Non-Party’s Text Messages within Defendants’ “Control”

Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017)

In this case, the court imposed an adverse inference against certain defendants for their failure to preserve text messages in the possession of a non-party, where the court found that the defendants had control of the non-party’s text messages, citing the non-party’s close working relationship with the defendants, his prior participation in the litigation (e.g., by providing documents, etc.), and his financial interest in the at-issue film (and thus the outcome of the litigation).

This case arises from potentially well-known facts. In 1977, two members of the Southern rock band Lynyrd Skynyrd and several other passengers were tragically killed in a plane crash.  In subsequent years, disagreement arose between a widow of one of the deceased and surviving band members regarding the use of the band’s name, resulting in the entry of a Consent Order which controlled the circumstances under which surviving band members could use the name Lynyrd Skynyrd, or the names and images or likenesses of the deceased, among other things.  Artimus Pyle, the drummer for Lynyrd Skynyrd and a survivor of the 1977 crash was a signatory to the Consent Order (notably signing “under protest”).

In 2016, Defendant Cleopatra Records, through one of its affiliate divisions (both “Cleopatra”), decided to make a film about the crash. Jared Cohn was hired as the director and screenwriter.  Cohn was paid by Cleopatra and reported to its founder, but was not an employee.  In the course of his work on the film, Cohn worked closely with Artimus Pyle, relying substantially on phone calls and text messages to communicate.  When Plaintiffs learned of the film, they sent a cease and desist letter.  When they discovered many months later that Cleopatra had continued with production, they initiated the present action alleging violation of the Consent Order.

Weeks after Plaintiffs filed suit and following the end of filming of the disputed movie, Cohn—a non-party— switched cell phone providers and acquired a new phone.  “Although certain data on Cohn’s old phone was backed-up, such as pictures, other data was not preserved, such as Cohn’s text messages, including those sent and received from Pyle.”  As a result, Plaintiffs sought an adverse inference sanction.

In response to Plaintiffs’ motion, Cleopatra argued that it could not be sanctioned for a non-party’s actions and that the phone was not within its control. The court disagreed, reasoning that the “concept of control”—pursuant to which documents are considered to be under a party’s control “if the party has the practical ability to obtain the documents from another, irrespective of his legal entitlement”— “has been construed broadly.”  The court continued:

Here, while Cohn is a non-party, his text messages were, practically speaking, under Cleopatra’s control. Cohn was contracted by Cleopatra to work on the Film, and the evidence has establishes [sic] that he worked closely with Cleopatra for over the past year. Over the course of the instant litigation, Cohn has participated by providing documents and took a deposition sought by Plaintiffs during discovery. As has been found relevant in other cases determining the relationship between a party and non-parties, Cohn also has a financial interest in the outcome of this litigation, since he is entitled to a percentage of the Film’s net receipts, which would be zero should Plaintiffs prevail. In sum, while determining practical control is not an exact science, “common sense” indicates that Cohn’s texts with Pyle were within Cleopatra’s control, and in the face of pending litigation over Pyle’s role in the Film, should have been preserved.

(Citations omitted.) The court went on to reject Cleopatra’s arguments regarding the lack of a valid subpoena.

The court also considered the prejudice arising from the loss, accepting Plaintiffs’ claim that they sought Pyle’s text messages “to no avail” and reasoning that despite Cleopatra’s production of other documents, “none sp[oke] directly to an important piece of this puzzle that would have been covered by the texts: the quality of interaction between Pyle, the Consent Order’s signatory, and Cohn, the principal writer and singular director of the Film, a relationship that evidence established was principally developed through text messages.”  Finally, the court considered Cohn’s actions as to the lost text messages reasoning that “getting a new phone after Plaintiffs brought the instant action and managing to back-up pictures but, somehow, not text messages,—evince the kind of deliberate behavior that sanctions are intended to prevent and weigh in favor of an adverse inference.”

Ultimately, the court concluded that an adverse inference would be presumed against the Cleopatra Defendants as to the missing text messages.

A full copy of the court’s opinion and order (ultimately resulting in a permanent injunction against the Cleopatra Defendants and an order that they pay reasonable attorneys fees and costs) is available here.