#CaseoftheWeek Episode 89: You Are What You Agreed To—A Cautionary Tale of Self-Collection

We’re in the last few weeks of the year, and we’re feeling extremely grateful for an amazing year. The Case of the Week series, produced in partnership with ACEDS, has been receiving wonderful accolades. And as we head towards our 100th episode, we couldn’t be more thrilled. We also have seen over 3900 cases added in 2022 to our case law database including our latest Case of the Week, Benanav v. Healthy Paws Pet Ins. LLC.

This decision is by United States District Judge Lauren King and is dated August 22, 2022. Our analysis of this matter will be on whether a series of plaintiffs that self-collected and produced documents can be compelled to comply with an ESI protocol and run additional search terms to meet their discovery obligations. 

Keep reading or watch the video to understand the eDiscovery issues.

Introduction

Greetings from snowy Colorado. Welcome to episode 89 of our Case of the Week series published in partnership with 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 this morning.

First, I hope each of you had a wonderful and relaxing holiday here in the United States. Since this is our first broadcast following the Georgetown Advanced eDiscovery Institute in DC, I wanted to say thank you to everyone who came by to say hi and tell me how much you enjoy our weekly broadcasts. It was great to see all of you and thanks so much for your support.

A couple of events coming up that you’ll want to put on your calendar. First is coming up pretty quickly tomorrow, Wednesday, November 30th at noon Eastern, I will be hosting Part 3 of the ACEDS four-part series on emojis. Part 3 is the judges panel, and I am thrilled to host Judges William Matthewman and Judge Xavier Rodriguez. For that webinar, we’ll be discussing the legal implications of emojis and what judges want to see when it comes to presenting that source of ESI.

Let’s dive into this week’s decision from Benanav v. Healthy Paws Pet Insurance, which was written by United States District Judge Lauren King. A ruling on a motion to compel, Judge King found the plaintiff in violation of the court-approved ESI protocol that both parties agreed to by failing to negotiate search terms or produce documents with the required associated metadata and load file.

This decision comes to us from August 22nd of 2022, so fairly recently. As always, we add issue tags to each of the decisions in our eDiscovery Assistant database. The issue tags for this case include: search terms, cloud computing, self-collection, cooperation of counsel, ESI protocol, failure to produce, metadata, proportionality, and form of production. So a lot of issues going on in this case.

Background

What are the facts before us? We are before the Court on a motion to compel in a nationwide class action in which the parties agreed to and signed off on an ESI protocol that dictated form of production as well as that the parties would agree to negotiate search terms.

Now following the entry of the ESI protocol, in response to requests for production from Healthy Paws, the plaintiffs conducted their own searches of their email accounts and files for responsive documents and provided them to counsel. Counsel then reviewed them with each plaintiff, but counsel did not collect each of the individual plaintiff’s email accounts and run search terms across them as proposed by Healthy Paws.

Healthy Paws, following these requests for production, proposed search terms to the plaintiffs in accordance with the ESI protocol. The plaintiffs then told Healthy Paws that they would provide edits to those search terms. Instead of providing any edits, the plaintiffs went ahead and produced documents from their own self-collection from their clients without responding to the search terms proposed by Healthy Paws, and in a format that did not provide metadata or include a load file.

Over the next six months, the parties went back and forth on the scope of the production as well as the format that plaintiffs provided to Healthy Paws. The culmination of that back and forth resulted in the plaintiffs stating that they were unable to run the search terms that Healthy Paws had proposed because 1) they had conducted self-searches of the individual email accounts with the assistance of counsel and 2) that they did not follow the ESI protocol as to the metadata and load file requirements because of the burden, expense, and lack of proportionality with the needs of this case.

However, plaintiffs did share hit reports for test searches on two of plaintiff’s email accounts using a set of plaintiff’s proposed search terms which seems a bit duplicitous — you can’t run the proposed search terms from Healthy Paws, but you can run search terms from your own proposed accounts? In essence, the plaintiffs argued that they couldn’t run Healthy Paws’ search terms because they had not collected the entire email accounts, but they were able to provide hit reports on their own search terms. Eyebrows raised. So those are really the competing positions that we have here.

Plaintiffs argue that because they conducted the self-search for the responsive documents — which we would refer to as self-collection — there is no full forensic collection of the email accounts that would allow them to run Healthy Paws’ search terms or to produce metadata and load files. Healthy Paws argues in response that the self-collection is flawed and provided incomplete results and that the production and format and self-collection violate the ESI protocol that the plaintiffs agreed to.

Analysis

What was the Court’s analysis here? Well, it doesn’t start off well for the plaintiffs. The Court begins by stating that it “has little difficulty in concluding that plaintiffs are required to produce documents in accordance with the ESI protocol, including conducting a reasonable search after conferring in good faith on reasonable search terms and other parameters. By its plain language, the ESI protocol obliges both parties to produce documents in accordance with its terms.”

That’s very consistent with what we’ve seen courts ordering in response to the parties agreeing to an ESI protocol and bringing it to the Court to sign. The Court then notes that the plaintiffs have by their own admission failed to follow the agreed-upon protocol that the Court entered. Specifically, the Court points to the plaintiff’s lack of response to Healthy Paws search terms and its unilateral self-collection that were inconsistent with the terms of the protocol that required the parties to work together to develop a reasonable set of search terms.

Plaintiffs argued that the protocol was entered after they collected the documents for production and should not control. If so, that begs the question as to why they would agree to an order they could not meet based on their collection. Did counsel not understand what they were agreeing to?

Plaintiffs also argue that requiring two searches is duplicative. The Court rejects that argument citing to the language from the Court in Albert v Lab Corp of America with this quote:

The federal rules and the ESI agreement in this jurisdiction work in tandem. Rule 34 requires that the producing party conduct a reasonable search for responsive relevant documents. This search can be accomplished several ways but typically involves a first step of asking witnesses to gather documents both paper and stored electronically that is reasonably accessible, and second, by identifying data sources that may contain relevant information and running search terms in those data sources. This is not duplicative.

Citing to additional authority, the Court also notes that it is typical for a party to conduct a prompt initial search for low-hanging fruit and later performing a more comprehensive search based on negotiated search terms. Here, if the plaintiffs thought they should be excepted from the typical process, the Court states that they should have had a timely discussion with Healthy Paws rather than making a production without any accompanying metadata or load file.

The Court then addressed plaintiffs’ argument that two searches is not proportional and that would cause undue burden and expense to the plaintiffs. The Court looks at Rule 26(b)(1), which discusses the proportionality requirement and requires the Court to consider “whether the burden or expense of the proposed discovery outweighs its likely benefit.”

Now important to this analysis is the fact that mere suspicion that additional documents must exist is not a sufficient basis to grant a motion to compel. Instead, the courts require that a moving party has to have a reasonable basis for its belief that relevant, responsive documents exist and are being improperly withheld.

After that discussion of the standard, the Court finds here that the inadequacy of plaintiffs’ self-collection is demonstrated by their repeated supplementation of productions in response to deficiencies discovered by Healthy Paws and points to three specific situations that highlight those inadequacies.

1. The plaintiffs represented that no additional responsive documents existed and then it stated that it found additional responsive documents from two plaintiffs.
2. The plaintiffs produced documents missing attachments with no explanation as to why.
3. The plaintiffs provided only a very vague explanation of how counsel supervised and directed each plaintiff in searching for and identifying responsive documents.

The Court notes that plaintiffs provided the following language with regard to the supervision that counsel provided to plaintiffs in identifying documents:

Counsel promptly met with each plaintiff to review Healthy Paws’ requests and discussed what responsive documents each plaintiff might have in his or her possession to aid in drafting responses and objections to the discovery. At this time, each plaintiff searched their emails and files for responsive documents and information. Counsel reviewed the documents and ask follow-up questions if necessary.

Now that language itself tells you the opposite of what we’ve discussed here on Case of the Week, and that is that essentially, counsel allowed the plaintiffs to conduct their own searches and then counsel asked follow-up questions. That’s not going to be sufficient to meet your obligations under Rule 26 and Rule 34, and we’re going to talk about that a little bit more.

The Court then states that those issues with plaintiffs’ search really highlight the issues with self-collection and, citing to the DR Distributors case, the Court notes that:

Parties and counsel that embark on self-collection can soon encounter multiple pitfalls that can sidetrack the litigation and lead to motions to compel, spoliated evidence, and even sanctions. Those pitfalls include the client’s failure to identify all sources of responsive information, to preserve evidence or to find and provide counsel all responsive documents and ESI, or to fully document how they conducted their searches.

Now the Court notes that in comparison to the failures in the DR Distributors’ case, these are relatively minor, but they do underscore the importance of reaching a clear agreement between counsel on the parameters of an ESI search. That’s what the parties claimed to do here when they entered into an ESI protocol that plaintiffs then unilaterally decided not to follow.

The Court then turns to the plaintiff’s cost argument. Plaintiffs alleged that it would cost roughly a thousand dollars to collect and host each individual email account for a month, and they have eight e-mail accounts to collect and host. The Court notes that the plaintiffs have filed a nationwide class action and it’s just way too late in the day for lawyers to expect to catch a break on ediscovery compliance because it is technically complex and resource-demanding. The Court notes that the plaintiffs had already agreed to a number of custodians equal to the number of named plaintiffs and the court notes that the plaintiffs are not disproportionately burdened relative to Healthy Paws.

By their own admission, plaintiffs have produced 490 pages of documents, whereas Healthy Paws has produced over 105,000. The Court notes that neither the plaintiffs nor the evidence they cite suggest that conducting a more thorough ESI search would result in a burdensome hit count, and either way Healthy Paws is still going to bear the bulk of the document collection and production burden in this case.

Plaintiffs’ test searches themselves even indicate that alternative search terms will not return dramatically different results. All of those lean in favor of the Court granting the motion to compel and requiring plaintiffs to produce additional information using search terms from Healthy Paws. Now, the Court goes on to note that even on this motion, the parties both agree that they are willing to continue negotiating search terms in good faith — as long as Healthy Paws will allow the plaintiffs to search within the web-based email platforms that they are drawing from, including Outlook, Gmail, and Yahoo versus search terms in a review platform.

Healthy Paws indicated that they were comfortable with that and were willing to make allowances for the search term capabilities within those platforms. As such, the Court ordered the parties to meet and confer on search terms and to report back to the court within seven days.

The Court then turned to the party’s obligations under the ESI protocol that they agreed to and entered with the Court and found that the plaintiffs must comply and produce documents with a load file containing the required metadata, calling it, “an obligation they voluntarily agreed to undertake.”

That protocol language requires production in a reasonably usable format and specific metadata fields. The order also notes that for 12 primary fields, which are the basics, and the parties agreed to populate them manually if they cannot be extracted electronically. The Court goes to this extent to deal with the plaintiffs’ Issue that they are searching within these webmail platforms as opposed to in an eDiscovery review platform where those metadata fields could be loaded.

The 12 fields that the Court requires are the pretty standard ones that we would need for any production:

The Court then orders the plaintiffs to provide load files and metadata for those existing productions within seven days. So, a short turnaround that the Court requires for the plaintiffs to be able to meet the obligations under the ESI protocol for existing production. This essentially means they’re going to have to put it in a review platform in order to be able to provide that load file and the required metadata.

Takeaways

What are our takeaways from this case? There are some pretty important takeaways from this decision today that reiterates many of the same things we’ve talked about on Case of the Week over and over.

First, self-collection is fraught. Let’s go back for a minute to the M1 5100 decision from Judge Matthewman in 2020 that we covered here on Case of the Week. It talks in detail about whether counsel are meeting their obligations by allowing clients to identify their own documents. Hint. Hint. The answer is no.

I think that it’s likely here, if it was an issue that was brought up on this motion to compel, the Court would have found that counsel were not meeting their obligations.

Second, if you’re going to enter into an ESI protocol, you will be bound by it. Consider that carefully. Make sure the efforts that you have already taken will be in accordance with the language you agree to in a protocol. Here, the plaintiffs’ counsel agreed to negotiate search terms after they had already conducted searches or essentially allowed their clients to self-conduct searches. They didn’t have to agree to that. Rules 26 and 34 require a producing party to provide responsive materials. They don’t require that the parties agree to search terms.

If you don’t want to agree to search terms, don’t agree to them and then fail to abide by that agreement. If you don’t want to agree to search terms, just don’t agree to them, don’t agree to negotiate them. This case is yet another example of how motion practice is more expensive than actual compliance with the protocol that the parties agreed to. In this particular instance, the plaintiffs argue that it would have cost them roughly $8,000 to collect these email accounts forensically and host them for a month so they could run whatever search terms are required by the parties and be able to produce the responsive information.

I’m going to guess that $8,000 is a lot less time and money than either party put into this motion to compel or the accompanying fallout which ultimately resulted in plaintiffs still having to meet the same obligations that they agreed to under the protocol. So now they’ve incurred the cost of a motion and they’re going to have to go back and incur the cost of the collection they should have done at the beginning of the case.

Here, even though counsel worked with their clients to identify responsive documents, they did not consider that Healthy Paws would want to have input in those searches conducted in doing the collection, and they agreed to allow Healthy Paws to have input into an ESI protocol after they’d already conducted searches and were not planning to allow anything further. This really goes to the fact that counsel have to understand the costs of eDiscovery going into a case, especially, in a class action case with multiple plaintiffs, and they’ve got to investigate ways to keep the costs low.

Plaintiffs here cite a thousand dollars to collect and host one email account for a month. That’s an extremely high cost to me. It says to me that either counsel doesn’t necessarily know the options that are out there for these kinds of collections and hosting or does not know how to compare costs for ediscovery services. It may also suggest that they simply just got that information in preparation for the motion versus in advance of collecting the data. However it played out, it doesn’t matter. I can tell you right now that the cost of collecting a web email account is not a thousand dollars and hosting it is for a month is not a thousand dollars. You could host it for a year after collection for less than a thousand dollars per account.

Obviously that depends on the size of the account, but we’re talking about plaintiffs’ individual email accounts. They could have been collected, searched, and then excess data that wasn’t necessary following that search could have been removed to be able to save on hosting costs.

In essence, the way that the plaintiffs went about it here — all the negotiation and fighting over the six months time following the production, ultimately having to comply with an ESI protocol — they spent way more time and money fighting about this than just complying with it.

So learn and know, understand what your obligations are going to be in ediscovery when you take the case. Have a plan for how you’re going to handle the data and what the associated costs are going to be. Understand what those costs are going to be before you take on the case and stop trying to shortcut your obligations.

It is extremely unlikely in today’s litigation in the Federal Courts that you’re going to be able to get an agreement from the other side that they will not seek metadata and a load file for a production. However, if that’s where you’re going to go, if both parties are going to agree that you’re going to provide simply PDF productions with no metadata associated with them, then you need to agree to that in writing for both sides because it’s unlikely that any court is going to provide that that is a reasonable form of data under Rule 34 at this point given the case law that has developed.

Conclusion

That’s our Case of the Week for this week. Thank you so much for joining me.

We’ll be back again next week with another decision from our eDiscovery Assistant database. If you’re interested in doing a free trial of our case law and resource database, sign up to get started. Have a great week. Stay safe and healthy and I’ll see you on our next episode.

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