There has been an outcry in recent years about “judicial activism” which is generally described when judicial rulings are based on personal or political considerations rather than on existing law. It is most often related to constitutional interpretation, statutory construction and separation of powers. Some are equating this form of judicial activism with those progressive judges who are pushing the envelope regarding EDiscovery rulings. There have been a number of articles and blogs written by professionals expressing concern about judges who are imposing EDiscovery solutions on parties, even when they haven’t been requested by either side. They believe that this form of activism is bad for the law.
I look at the same information and interpret the results in a more positive light. I think that judges are sick and tired of parties “working” the system; not complying with the intent of the Federal Rules of Civil Procedure and other state rules which are written to provide a systematic approach to discovery. Parties are spending countless hours of the court’s time fighting over issues which ultimately do not go to the fact pattern of a case. Discovery rules are in place to assure an orderly exchange of relevant information to be used in evaluating the veracity of lawsuits.
Judges are beginning to force parties to comply with the law and engage the use of technology whenever they feel that it will assist the discovery of facts and help ensure the speedy and inexpensive outcome which is at the heart of the rules. As a technologist, I believe that this has been a long time coming and is a positive direction for the industry. While recent rulings still indicate a state of flux, I believe that lawyers need to look at some recent court decisions and more carefully pick which battles they wish to fight regarding the production of data. While judicial intervention may be raising some questions about the extent to which judges should direct third-party experts or force parties to embrace particular EDiscovery methods, the field of play is changing and litigators need to take notice.
Recent Cases
In a very recent case, Carrillo v. Schneider Logistics, Inc., No. CV 11-8557-CAS, 2012 U.S. Dist. LEXIS 146903 (C.D. Cal. Oct. 5, 2012), Magistrate Judge David D. Bristow took the action of ordering the defendant to hire a third party EDiscovery services provider to collect e-mails and other ESI after the defendant failed to produce responsive documents in spite of the existence of a court order. The basis for this action came after Schnieider repeatedly claimed to have produced all responsive documents, but the plaintiffs continually proved to the court that this was not the case. When deposed, Schneider's representative could not testify as to the specific steps the company took to search for responsive documents. Based on these statements, the court held that it had lost confidence in the defendant’s good faith in conducting searches.
The court ruled that Schneider was "required to retain an outside vendor experienced in retrieving electronically stored information to collect responsive documents and determine whether responsive documents have been permanently destroyed. In addition to awarding monetary sanctions to the plaintiffs, the court also ordered the following:
• The EDiscovery company should be given access to all servers where the e-mails were kept as well as individual hard drives from the custodians involved in the dispute in order to conduct keyword searches.
• A fairly short 45-day deadline for producing all documents responsive to the plaintiffs' discovery requests.
• Schneider could only exclude documents that were protected by attorney client privilege, but not on the basis of relevance
• The EDiscovery company was also to perform some forensic analysis to determine whether any responsive documents had been deleted by defendants and if so, could they be recovered
• Finally, the court ruled that if the parties cannot agree on an EDiscovery provider, search protocol, or document custodians, the court would step in to resolve the disputes.will resolve the disputes. The court also awarded monetary sanctions to the plaintiffs.
Other Interesting Judicial Intervention Case Notes
EORHB, Inc. v. HOA Holdings LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012).
The judge ruled sua sponte that parties should utilize predictive coding to assist in the discovery process and further, that both parties should hire and split the services of a single EDiscovery vendor during the remainder of the litigation between the parties.
Kleen Products, LLC v. Packaging Corp. of America, No. 10 C 5711, 2012 U.S. Dist. LEXIS 139632 (N.D. Ill. Sept. 28, 2012).
A party’s interrogatory was quashed when the judge found it violated the spirit of cooperation that she had previously ordered the parties to comply with throughout discovery (although she commended the parties on their overall commitment to cooperating throughout the pendency of their litigation).
Scentsy, Inc. v. B.R. Chase, LLC, No. 1:11-cv-00249-BLW, 2012 U.S. Dist. LEXIS 143633 (D. Idaho Oct. 2, 2012).
This case involves the importance of having a written vs. verbal litigation hold procedure. The company had only employed an oral communication about litigation hold that resulted in staff deleting all emails that were over 6 months old. Finding that the company's verbal litigation hold policy was insufficient, the court held that the company had spoliated evidence.
However, because a forensic examination of the company's computers would cost into the millions of dollars, such a remedy would be an undue burden. The court determined that in this case, it would be appropriate that witnesses from the company be deposed about relevant e-mails that were deleted due to the inadequate retention policy and litigation hold.
The Takeway
The judiciary is beginning to understand that technology solutions can have a positive impact on controlling litigation, especially in the discovery process. When parties don’t cooperate with one another, try to use the complexity of database management as a fence to hide behind or claim that information is too difficult to obtain without describing the steps that have been taken; judges are stepping up and forcing parties to use technology to solve problems. It used to be acceptable for an attorney to just affirm that information was not accessible and the courts would move on. But that is no longer the case. Judges want to know, in detail, what technology and expertise have been employed in response to discovery issues. And recently, they have not been shy in requiring or imposing a solution when a party does not provide adequate information. Judges want to get through the discovery process and litigate the facts of the case, not the process of exchanging information.
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