Episode 64 of #CaseoftheWeek is an analysis of the decision by United States District Judge William J. Martini from March 17, 2022 on the matter of Famulare v. Gannett Co., 2022 WL (D.N.J. 2022).
CEO Kelly Twigger discusses whether a party is required to produce screenshots of data that is not otherwise exported in report format from Salesforce.
Good morning and welcome to our Case of the Week. This is episode 64 of our #CaseoftheWeek series, published in partnership with the Association of Certified eDiscovery Specialists or ACEDS. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant, as well as the Principal at ESI Attorneys.
Thanks so much for joining me today for this episode. This is an interesting one because we’re looking at not a new form of information, but it’s a case that covers a new form of information. It’s a really interesting one to consider in case you come across this in your casework.
As you know, on our Case of the Week series, each week, we choose a new decision from our eDiscovery Assistant database and talk about the practical aspects of it in order to highlight those issues for you to leverage in your practice for your clients and so that you know what’s happening in the world of eDiscovery case law.
This week’s decision comes to us from a case titled Famulare vs. Gannett Company. This is from the District of New Jersey just recently from March 17th of 2022. This is a decision from Judge William Martini, who is the United States District Judge in the District of New Jersey. Judge Martini has 11 other decisions in our eDiscovery Assistant database, so he’s very familiar with eDiscovery issues, has ruled on multiple cases in front of him.
As always, we tag each of our decisions in the eDiscovery Assistant database with issue tags using our proprietary structure. This week’s issue Tags include:
- form of production, and
- 30 (b)(6) corporate designee.
All right, let’s talk about the facts of this decision. We are in front of the district court on an appeal from the Magistrate’s text order denying a motion to compel. Again, the defendants have appealed the Magistrate’s order under Rule 72. We’ve seen a few decisions on appeal like this on our Case of the Week series, and as always, our standard of review is going to be very telling as to what the district court decides. Oftentimes we see that the arguments that are presented by the parties in front of the district court are different than those presented in front of the Magistrate, and the district court can’t look at them because that’s not what the standard of review is under Rule 72. Let’s pay attention to that.
This particular issue is a dispute over data produced by Salesforce.com. If you’re not familiar with Salesforce, it is the leading customer relationship management platform, otherwise called CRM. Salesforce compiles a lot of data, typically that’s entered by salespeople about customers, and then all that information can be generated. You’re talking about deals that are made, value of deals, customer relationships, customer information, individuals at that customer who may have different roles. In essence, Salesforce, as a general rule, is used to manage a sales team in that it compiles all the information about the work that those sales team members have done.
Reports that are generated from Salesforce will give you a lot of background into the performance of your sales team members. In this particular instance, the plaintiff is looking for reports of other team members to compare to reports that she printed about herself prior to leaving the company using Salesforce.
The dispute here is whether the defendants are obligated to produce screenshots of certain computer-generated reports within Salesforce, in addition to an Excel spreadsheet that they’ve already produced.
We’ve got a situation here where the plaintiffs asked for report-based information. The defendants produced an Excel spreadsheet from Salesforce, which is likely the export that’s available from Salesforce containing the information that was requested. Plaintiff said, “no, I want the report visualizations that are available in Salesforce.” The dispute is whether those can actually be provided from Salesforce or not, and whether the defendants have an obligation to produce them since they’ve already produced the Excel spreadsheet.
Just a little bit more background. As I mentioned, Salesforce really maintains and memorializes various performance metrics of individual account executives and offers the ability to generate reports of those metrics for a specified time period. Standard reporting functions that you would expect to see in any sort of database related structure.
The plaintiff, as I mentioned, generated and printed reports of her own performance metrics, and now she seeks those for other employees for purposes of comparison. Now, there’s no information in this particular decision about the underlying facts of this case. It sounds like it’s probably a wrongful termination case or something in which she wants to compare what her performance was to other employees.
The parties went before the magistrate judge on a telephonic conference to discuss this motion to compel. Following that telephone conference, the magistrate judge issued a text order—not a formal written order, so that one you’re not going to find in our eDiscovery Assistant database—which we do see a lot on discovery rulings, if they can be quick. The text ruling from the magistrate judge stated that pursuant to the Federal Rule of Civil Procedure 34(b)(2)(e)(1), the extent possible, defendant shall produce the reports in screenshot format in addition to the Excel spreadsheet format already produced. Counsel shall schedule and take the rule 30(b)(6) deposition of a defendant representative on this issue, if defendant maintains it cannot produce the screenshot format.
In essence, at the hearing with the magistrate, the defendant’s argument was that not that they shouldn’t be required to produce a second form of information under Rule 34, but that they simply could not produce the screenshots that plaintiff was requesting because of the dynamic nature of the Salesforce platform. It’s not really explained in detail what that dynamic nature means, but essentially, I’m guessing that you generate information, but it’s a constantly updating format, and so static screenshots may be difficult to take.
In essence, what the magistrate judge said was, “well, if plaintiff could take screenshots of the reports that she generated, then it seems to me that you ought to be able to generate the same reports for other employees but this is a perfect topic to cover under a Rule 30(b)(6) deposition, so I’m going to order that you do a Rule 30(b)(6) deposition to determine the ability to take those screenshots. If you can take them, then the defendant is required to produce them.
We’ve got two issues here. We’ve got functionality of the platform to actually produce the information that is being requested in discovery, and we’ve got whether or not the defendant should be required to produce a second form of information. On the second point, again, defendants don’t raise that in front of the magistrate judge.
The defendants essentially argue that the reports that the plaintiff produce were not freestanding fixed reports, but they were screenshots, and that they could not generate or print out the reports that she requested and only provided her with the underlying historical data in the form of a spreadsheet.
Essentially, at the magistrate hearing, the parties represented that the requested reports can only be generated and printed. The discussion was really whether or not Salesforce has the capability to print the reports that the plaintiff is asking for. As I mentioned, Judge Hammer concluded that the 30(b)(6) deposition was really the way to figure out whether or not that capability existed, and if it did exist, then he ordered that those screenshots were to be produced.
He also kind of raised the issue that I mentioned earlier, which is that to the extent that the plaintiffs can print and produce the individual screenshots of the report, because that information is how it’s stored in the ordinary course of business, then the defendants have that production obligation. Whether they can actually do that will be determined by the 30(b)(6) deposition.
The judge notes this and I think it’s important. He says, “It strikes me that this is exactly how they’re kept in the ordinary course of business, since the employees in the ordinary course of business are accessing the information that way. But as we said, until the Rule 30(b)(6) deposition is completed, we just don’t know.” That’s the ruling from the magistrate judge.
Now we turn to the appeal before the district judge under Rule 72. The defendants appealed the text order on the grounds that it requires them to produce ESI in the second format, which is contrary to Rule 34(b)(2)(e)(3). Two points on this: one, standard of review on Rule 72 objections is that the magistrate’s ruling has to be clearly erroneous, contrary to law or an abuse of discretion. The district court judge goes on to note that, “The magistrate judge has ruled on a non-dispositive matter, such as a discovery motion, then his or her ruling is entitled to great deference and is reversible only for abuse of discretion.”
Your second point is really that the language of Rule 34(b)(2)(e)(3) specifically states that a party need only produce ESI in one form. Those are your two issues.
The district court then goes on to review the Magistrate’s order and talks a little bit about the phone call that they had on the hearing and says that the defendants really presented contrary positions. During the call they said that they can’t provide screenshots, but on appeal now they’re saying that Rule 34 doesn’t require two forms of production. The district court says, “those two things don’t jive. You didn’t raise this in front of the Magistrate judge, so it isn’t something that we consider.”
The Court specifically states that the defendants, on the one hand, argue that the text order requires them to produce ESI in a second format, but on the other hand, they continue to argue that it’s not possible to give plaintiff the actual information in the form of screenshots due to the dynamic nature of the platform. Those two things don’t really jive, either one, you’re not required to do it, or two, you don’t have the capability to do it. They’re really competing arguments.
The district court notes that the fact that the argument that was raised in front of the magistrate was about the nature of the platform and the inability to produce the screenshots is exactly why the magistrate judge provided the option for the 30(b)(6) deposition to determine the functionality of Salesforce and how it reports or maintains the data that’s at issue.
Then the Court states that to the extent that the defendants now argue that there is no basis to have a corporate representative deposed about whether defendants have the capability to take screenshots, that position starkly contrasts their prior representations at the parties meet and confer, and on the telephone conference with the magistrate judge that they are happy to have plaintiff take the deposition and speak with our client representatives, who can tell them about what’s possible and what’s not.
The Court also notes on the appeal that the defendants relied very heavily on information drawn from affidavits and certifications from employees about Salesforce’s functionality and how it maintains and stores data and submit that the district court should decide the issue because the functionality of Salesforce is at the core of the motion. The district court agrees that, “yes, the functionality of Salesforce is at the core of this motion, but you didn’t put that before the magistrate judge. The district court, under the standard of review for Rule 72, cannot take anything into account that the magistrate judge did not consider.”
The Court then notes that the defendants need to rely on outside evidence to explain the functionality of Salesforce further emphasizes the need for a 30(b)(6) deposition and a more developed record on the topic as the magistrate judge repeatedly stated to the parties in their telephone conference hearing. The district court reiterated Judge Hammer’s sentiments that until that deposition is completed, the nature of the Salesforce program and its capabilities are unknown. As such, the district court denied the appeal here. Essentially, the defendants are right back where they started. They’ve got to provide that 30(b)(6) deposition that the Magistrate judge ordered in order to establish the functionality of Salesforce and the ability to print those reports.
Okay, what are our takeaways? Well, first, we’ve talked multiple times about the standard of review under Rule 72, when you’re objecting to a magistrate’s ruling on a discovery dispute, and it’s just so important that you understand what are the positions that you need to take at the magistrate judge level because you won’t be able to add to those as additional arguments on appeal under Rule 72. That’s really where the defendants fell short here. Had they argued to the magistrate judge, that they were not required to provide two forms of production under Rule 34, then there may have been a different analysis as to whether or not the underlying historical data produced in Excel format was reasonable enough to satisfy Rule 34 requirements, probably was.
One of the things that really struck me here is that by having the Excel file with the underlying historical data, the plaintiffs may have been able to recreate the reports that they wanted to with visualizations. That requires a pretty detailed understanding of Salesforce and perhaps setting up another account. You may have been able to hire an expert to be able to do something like that. If in fact, plaintiffs ultimately lose on the motion to getting additional information, then that may be one option that’s available to them with the historical information they received in Excel. You can use Excel data to create a number of visualizations. Whether they’re going to be exactly the same as the ones in Salesforce.com remains to be seen.
We talked a little bit about this already, but really our second takeaway is that you need to know your positions. Had defendants made the argument that they’d satisfied Rule 34 in front of the magistrate, the evidence on the appeal before the district court would have been completely different and district court may have had an opportunity to rule whether they had in fact satisfied their obligations under Rule 34 with production of the Excel spreadsheet.
This one’s pretty clear-cut case. The reason that I wanted to talk with you about it today is because of the Salesforce.com data. We do see that data being collected in a somewhat regular basis depending on the types of cases you’re talking about. Sometimes theft of trade secret cases, sometimes wrongful termination cases with regard to sales employees. There are multiple types of disputes in which this data can come into play. You need to understand how Salesforce works if your clients are using it and there’s a potential of it being produced in discovery so that you can provide that information effectively. I would also suggest that you want to meet and confer about the types of data that the other side is looking for out of Salesforce so you can provide that information and avoid this kind of costly dispute moving forward.
All right, that’s our #CaseoftheWeek for this week, short and sweet. Thanks so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database.
If you are an ACEDS member and interested in using eDiscovery Assistant, there’s a discount available to current ACEDS members and a trial for folks who are taking the ACEDS exam. You can access information on both of those in your ACEDS portal.
Thanks so much. Stay safe and healthy out there and we’ll see you next week.