In episode 39, we explore the decision in Penn Eng’g & Mfg. Corp. v. Peninsula Components, Inc., 2021 WL 3857810 (E.D. Pa. 2021). Although the issue in question here focuses on Google Ads reports, the higher arching issue is around when a party maintain specific reports from databases and has greater custody of additional materials.
Good morning and welcome to our #CaseoftheWeek for September 14, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant, which is an online practical resource tool for lawyers and legal professionals engaged in electronic discovery. I’m also the principal at ESI Attorneys. Thanks so much for joining me today.
Each week, as you know, for our partnership with ACEDS, at eDiscovery Assistant we choose a recent decision in eDiscovery that comes from our database that highlights key issues for litigators and those involved in the discovery process. We talk about the practical implications of that decision for you and what you need to be thinking about as you’re addressing these issues. As always, you can find the link to the decision that we’re discussing today in the comments section of whatever platform you’re viewing us on, whether that’s YouTube, Twitter, LinkedIn or Facebook.
You should also find a link to the 2020 Case Law Report that we did in conjunction with Doug Austin at eDiscovery Today. We’ll be doing a subsequent report for 2021 as we get to what is essentially almost the final quarter of the year. We’ve got more than 2000 decisions in eDiscovery Assistant this year alone. It’s been another banner year for case law in this area and today’s decision is something that addresses something that we don’t talk about a lot in terms of form of production, and that is addressing how to get data from a particular database that a party has control over. Let’s get into this week’s case.
Our decision this week comes from Penn Eng’g & Mfg. Corp. v. Peninsula Components, Inc. The cite is 2021 WL 3857810. It is from the Eastern District of Pennsylvania from August 30th of 2021. This decision comes from United States Magistrate Judge Lynne Sitarski. Judge Sitarski has 16 separate eDiscovery decisions in our database at eDiscovery Assistant and this week’s decision covers the issues of protective order, custody or control, failure to produce, and proportionality.
What we’re in front of here today is really an issue on when Google Ads reports are proportional and responsive on a motion to compel, and whether a party who has access to their Google Ads dashboard has control over potential reports from that dashboard such that they can be produced in discovery. Let’s dive into the facts of this case.
We’re in front of the court today on a motion to compel. Again, the issue is whether or not information in the Google Ads online database for the defendant is within the defendant’s custody or control such that the defendant needs to produce additional information from that database that has not already been created in the form of a document for the defendant and that the defendant currently has.
As we deal with databases—if you’re familiar with a database, any kind of database—we could be talking about something as sophisticated as a SAP procurement database for an organization. We could be talking about Salesforce. We could be talking about your online billing software for your firm, any kind of online database. All of those databases have reporting functions that allow you to spit out reports, and typically, the reports that are sent to you by whoever’s managing that account or that your requests for reports are based on the information that you want and need, but they don’t cover the full spectrum of information that is available from that database. When we deal with database discovery, we have to understand what information is available, what the other side wants, whether we have an objection to what the other side wants, and what’s reasonable to create in the form of a report.
Typically, database discovery is not handled in the same way as other requests for production, because, frankly, the request for production should be a jumping off point to discuss what information is available from a database and what reports will be provided. With that kind of background, let’s dive in here.
The plaintiff here alleged that since at least January of 2013, that the defendant had programmed its Google Ads account to display ads unlawfully suggesting an affiliation between the plaintiff and the defendant in response to Google users search for a variety of keywords and phrases containing plaintiff’s trademark. The plaintiff seeks to recover damages from February 2013 through the present and in their initial request for production, the defendant included three separate requests. I want you to listen to the language of these requests and think about—based on what I just told you about how we do discovery from databases—whether these requests are going to get the plaintiff where they want to be in terms of documents.
Request for production number 8 asked for “all documents between Defendant and Google Inc. related to any of defendant’s online keyword advertising programs hosted by Google Inc.” Request for Production number 10 asked for “all documents related to any report generated by or on behalf of Defendant using Google Analytics account, Google Ads account, or any other analytic tool related to defendant’s keyword advertising program hosted by Google.” And request for number 11 asked for “all documents related to the creation of defendant’s online keyword advertising program hosted by Google Inc.”
If we just look back at the language of those three requests, there’s a couple of things that immediately struck me. One is that they’ve asked for documents between defendant and Google. That specifically means that they’re looking for documents that have been created already and are in the custody or control of the defendant from Google. Reports that someone generated that have been sent to the defendant from Google based on not just the AdWords account, because request number 10 also references a Google Analytics account.
Now, Google Analytics and Google AdWords are two completely separate programs both owned and operated by Google, but two separate programs to separate databases that contain different information. They feed into each other, but they are separate databases. Immediately we’ve got requests for production that really are interested in getting information from the Google AdWords account and potentially from the Google Analytics account, but that are worded in a way that suggests that they really just want the documents that have already been created from the account and transmitted to the defendant by Google. Now, whether that’s done by a third party, a lot of times, corporations or organizations generally, whether their Corporation or not, will hire a third party agency to manage a Google AdWords account. Creating and managing Google AdWords account is a pretty standard marketing function these days. You know what Google AdWords are, what Google Ads are because you see them every time you go onto Google Chrome and you get ads in response to something that you might have searched for on another platform.
Now, in response to these requests for production, the defendant produced documents from the files of its marketing director and from two agencies that manage the Google AdWords account. They produced reports that only covered a five-month period in 2017 and a one year period starting in October 2018 from its files.
From those three requests for production that we just discussed, they got files from five months in 2017 and a one-year period in 2018, but nothing for 2019 or for 2020 at this point. We’re looking at a decision from August of 2021 in a situation where the plaintiff is looking for damages through the present time. Clearly, we haven’t covered the full spectrum of data that is available from the Google AdWords account.
The plaintiff argued that the documents that had been produced today were incomplete and outdated and that
the original current Google Ad reports are needed to form a complete understanding of the methodology that defendant used to develop and operate its online advertising program, including the scope, the targeted audience of the campaigns, the infringing keywords used, the infringing ads that were displayed, the dates and the number of times each was displayed, and the number of impressions and click through rate for each ad.
That information is very important because each of those items are specific metadata fields that would be tracked by Google in a Google Ads dashboard, but in order to get that information, you have to run the appropriate query to create a report out of Google Ads. Those are not typically the types of fields that would be created, and reports would be sent from the company managing the account to the defendant because that’s not the kind of information that the defendant wants to see. The defendant, when it’s managing its AdWords account, really wants to see the growth of the account, what’s being successful, what kind of changes have been made to the account. That kind of information not the same as the information that’s being sought here in discovery.
Now, after receiving the produced reports from 2017 and 2018, the plaintiff deposed the defendant’s marketing director as well as the representatives of the vendors, but the plaintiff argued on this motion to compel that the depositions did not cure the deficiencies in the document productions because the marketing director “could not answer simple and direct questions related to the defendant’s online advertising campaign.” Because the depositions of the vendors were limited to the pre-produced reports only, there was no ability to do anything beyond the information that they had from 2017 and 2018. Recall that this damages claim goes back to 2013 and through 2021.
On our motion to compel here, the plaintiff is seeking the most current reports that contain the specific data points, those metadata fields that I mentioned that the plaintiff requests.
Now, the defendant really opposed this motion on three grounds. First, they argued that in 2019, its vendors produced reports and that the depositions had happened. We talked about that in terms of the plaintiff’s response. Second, it claimed that it produced two reports specifically identified by plaintiff’s counsel in June of 2021. And third, it argues that any additional information would prove “disproportionate to any legitimate discovery needs to require defendant to give plaintiff access and training and support to use Peninsula’s Google Ads account.” In effect, the defendant wanted to say, “hey, if we give them access to our account, which is what they’re asking for in order to produce these new reports, then we’re going to have to train them how to use it, and that’s going to detract from our time, and that’s not proportional to the needs of this case.”
What does the Court have to say about the situation? The Court starts by stating that relevant information has to be both proportional to the needs of the case and that a party must produce information not only in its possession but also in its control. One of the defendant’s arguments was that it didn’t have any additional documents from the Google Ads in its control; that it had produced everything that was available to it. Plaintiff argued that “wait, you can’t just say because you don’t have an actual document, you don’t have control over your Google Ads dashboard to create reports.” But that’s in fact, what the defendant argued.
The Court looked at everything that we’ve talked about already and said that the productions from 2017 and 2018 did not satisfy Defendant’s productions obligations.
The defendant did acknowledge that the reports produced by the vendors were only the ones generated by the defendant in the course of managing its account and not all of the available reports. The Court seized on that as a basis for noting that the defendant’s productions had not met all of its obligations.
The Court did concede that the reports that had been produced included relevant ad campaign and keyword information that was generated from the Google Ads account. But it also noted that the plaintiff sought additional information about the dates on which each ad was displayed, target audiences, clickthrough rates, and the number of impressions. None of that data was included in the reports that had been provided by defendant to date. The Court found that there was no question that the reports and the deposition testimony were limited in scope to the 2017 and 2018 information that had been provided and that the production did not contain any information for 2021.
The defendant then argued that the two recent files they had provided in June of 2021 fulfill those obligations. The plaintiff then looked at those reports and argued to the Court that neither of the new reports contain the requested information regarding the keywords used by the defendant to trigger the online ads, the date ranges it used those keywords or the date ranges the ads were displayed to potential customers. Again, additional metadata field that the plaintiff is asking for, that the defendant provided a new report about but didn’t include all of that information.
One does wonder here, always on the Monday morning quarterback seat, as to whether or not the lawyers could have simply picked up the phone and discussed what fields they wanted available in a report and avoided this entire motion practice.
The Court reviewed the spreadsheet and was also unable to locate the missing information that was identified by the plaintiffs. The Court said, “nowhere does either document contain a ‘keyword’ category, nor does it either contain a list of what appeared to be keywords, even if not referred to as such.” Essentially, those June 2021 spreadsheets that the defendant provided did not relieve the defendant of their production obligation.
The Court then turned to look at the proportionality considerations. The defendant had argued that they would have to train the plaintiff on how to use their account or otherwise that allowing plaintiff to have access to the account amounted to a fishing expedition.
The plaintiff argued that it did not need training and that it only needed access to the account for an hour or so and offered to restrict viewing of the account to just the attorneys and the experts only. At this point because the defendants had not produced any of the reports that were needed, the plaintiffs have said, “fine, just let us have access to the account, and we’ll pull the reports that we want.” The Court’s now entertaining that notion and the defendant is arguing, “hey, we’ll have to train you how to use it.” The plaintiff’s saying, “no, you won’t. We hired an expert. We know exactly how to do this. All we need is access to the database we’ll go in and get your reports.” The Court said the defendant can let the plaintiff download reports directly and ordered that the plaintiff have 3 hours with access restricted to the attorneys and experts with the defendant able to monitor by screen sharing or by sending a representative to the location where the plaintiff would access the account.
The Court rejected the argument that reports don’t have to be produced because they’re not used in the ordinary course of business. Essentially what I mentioned earlier, the defendant said, “look, these are not the kind of reports that we normally get, so they shouldn’t be discoverable.” The Court said, “no. If this information is available, it’s in your control, and all we have to do is press a few clicks of a button to get a report. It is available and should be produced in discovery.”
The Court agreed with the fact that because the ESI was in the defendant’s control and in the form in which the information is stored, that they were not constructing new litigation documents for the plaintiff.
The Court ordered the defendant to provide either one or all the Google Ads reports that had been listed in a URL emailed by plaintiff’s counsel to defendant’s counsel or for the defendant to provide 3 hours of access for the plaintiff to defendants Google Ads account, which would be limited to plaintiff’s attorneys and experts only. The Court also provided that if the defendant chose the latter option, that it could monitor plaintiff’s access remotely and or in person and that it did not have to provide any support or training to the plaintiff.
That’s what we have on this decision. What are our takeaways?
The reason I chose this case today is because understanding database discovery is really important. We are moving to a completely SaaS based world. Even if you continue to manage software behind the firewall, almost all of your software applications are, in fact, databases of information. Pulling reports from those databases is going to be the future of discovery in a lot of ways. We’re seeing a lot more cases; this decision here in the Penn Engineering case is a little bit similar to the DR Distributors case that we had back in January factually, in that you’re talking about information being placed on the Web that has an impact on competition.
The question becomes, how is the law going to develop in this area? In the meantime, we are having discovery of all kinds of information about what’s generated on the Internet that we otherwise would not have. You’ve got to pay attention to what is available out there and you’ve got to understand how database discovery works. This Google Ads case is a great opportunity to highlight that information. That’s why I chose it today.
Now, this case and this database example is really one that shows you that you have to draft RFPs based on the type of ESI that you’re requesting. We talked through the RFP that the plaintiffs originally proposed here, and really they were too narrow. They asked for documents; documents would have been information that would already have been created. What the drafting lawyers need to think about here when you’re drafting these requests is, what is it that I actually want? If I want a report of content with these 10 metadata fields from this date range from 2013 through the current time, then that is specifically what I should ask for. If you also want to meet and confer about the availability of metadata fields for a particular database, then that should be part of your request, and it should also be included in the cover letter for your request for production.
For example, in this request where I ask for this report with a list of metadata fields, I would also say that plaintiffs want to meet and confer with defense counsel prior to these reports being provided to ensure that all metadata and the proper date range for the reports is provided. Then include the same information in your cover letter to alert counsel to the fact that you want to sit down and have a conversation and make sure you get what you need in the first instance. Then you’ve always got to supplement your responses so if that discovery response or those reports are provided in 2019, that you subsequently provide them on whatever time frame the parties agree going forward. If this case continues forward through 2021, maybe you’re providing them monthly, maybe you’re providing them quarterly, whatever it is that the parties agree to. That’s how database discovery for ongoing damages information needs to work.
Now, databases are a specific kind of ESI that often can’t be duplicated or have the data provided in native format. A lot of databases are built in a way that you wouldn’t want a copy of the entire database. All you want is a report of the information from that database that’s relevant to your claims.
Now, this particular case, this is a situation where you can hire somebody who knows and understands Google AdWords and say to them, “here’s what we’re trying to learn.” Have them tell you these are the fields that you need to get in a report so that we can do a proper analysis. Similar types of experts exist for almost every kind of database that’s out there. If you don’t understand the database that you’re working with, you need to find someone who can help you do that.
Another alternative is to meet and confer with the other side, but then you’re really relying on the fact that opposing counsel is going to have that information for you. We know that is rarely the case. It really is incumbent upon you to do the legwork to understand the sources of ESI that you are asking for, and then to ensure that you’re getting what you need on your request for production. This particular motion here is something that I think probably could have been avoided if the parties had communicated about what the specific metadata fields were that they needed.
It looked to me like from the decision — (I’m really reading between the lines again in a Monday morning quarterback sort of situation or Tuesday, I guess, is reality) — as I look between the lines of this case, it feels like that eventually the plaintiff’s counsel figured out that they needed to find somebody who could help them with this and be able to dig in and figure out what they needed here. What I’m suggesting is when you have database discovery, you need to find that person early before you even issue your requests for production, so you’re doing it in the most efficient way possible. We all know that you waste a lot of time and money not getting the discovery that you need when you need it, and it’s very difficult to get courts to extend deadlines or to reorder depositions because you didn’t ask for what you needed in the first instance.
One of the big pieces here was that the reports the plaintiff wanted are not ones that would be normally generated. In this kind of situation, again, you’re asking for specific information that is not otherwise what businesspeople would be looking at. We have this kind of request all the time when we ask for financial information or sales information in the context of discovery. Anytime we’ve got databases, information that would come from a procurement database, from even sometimes HR databases, there are reports that are generated that we need to make sure we understand what the fields are for the information we want. In order to understand what you want, you have to understand what’s available.
Sometimes in database discovery, you can ask the other side for an Excel spreadsheet of all the fields that are available in that database. Now, sometimes with certain databases, you are talking about thousands of fields, you want to limit that. I want all the fields related to X. I want all the fields related to the sales function for this. It needs to be a narrowly tailored set of metadata fields that you’re asking for, but you can also do that if you don’t have an expert that’s available, and then you could also get definitions of those metadata fields in order to facilitate what it is that you’re asking for. Then you can have an educated discussion with opposing counsel and with the client about what information they’re willing to provide before you have to go to the court.
Our takeaway from today really is know and understand the sources of data that you’re asking for before you ask. I think there’s a lot of time and money that could have been saved here on both sides by engaging that Google Ads expert very early and asking for very targeted requests of reports. The parties may still have ended up here in front of the judge, but it’s pretty clear that when you have control over a database, an online database, whether it’s Google Ads or some kind of third-party SaaS based software that’s providing information that is relevant to discovery, you will have to provide it.
That’s our #CaseoftheWeek for this week. Thanks so much for joining me. I’ll be back next week with another addition of #CaseoftheWeek from eDiscovery Assistant.
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Thanks so much. Have a great week. Stay safe and healthy. See you next week.
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