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Celebrating the 100th Episode: 10 Takeaways from eDiscovery Case Law

The 100th episode of Case of the Week, produced by ACEDS and supported by eDiscovery Assistant, featured a special discussion between Kelly Twigger, CEO and founder of eDiscovery Assistant and principal at ESI Attorneys, and David Horrigan, Discovery Counsel and Legal Education Director with Relativity. The pair celebrated this milestone by reflecting on the top ten takeaways from their first 99 episodes, drawing from case law and current events in eDiscovery.

During the episode, they also announced the release of the 2022 Case Law Report from eDiscovery Assistant and the 8th Annual Data Discovery Legal Year In Review by Relativity. Both reports provide valuable insights into developments and trends in the eDiscovery, data privacy, and ESI worlds. Additionally, Twigger and Horrigan mentioned their upcoming appearances at Legalweek in New York City, where they will speak on separate panels.

In a fun twist, attendees of either panel who mention the 100th episode will have a chance to win merchandise from either Relativity or eDiscovery Assistant, depending on which speaker has more attendees at their Legalweek session that mention the 100th episode of Case of the Week.

This celebratory episode highlights the value and impact of Case of the Week on the eDiscovery community, providing practical takeaways and fostering discussions on essential developments in the field.

Kelly Twigger: Hi, and welcome to our 100th episode of the Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys.

Kelly: I am absolutely thrilled to welcome my friend and colleague David Horrigan to our broadcast today. David is Discovery Counsel and Legal Education Director with Relativity and has hosted me on numerous panels and broadcasts with Relativity. He’s such a voice of eDiscovery, I’m thrilled to have him here today. Thanks, David, for joining me.

David Horrigan: Kelly, thank you for having me on this big event for Case of the Week, the 100th episode. I’m really honored to be here and looking forward to a great program.

Kelly: I know, It’s going to be fun. So thanks everyone for joining us. A couple of announcements before we dive in. First, as promised, our 2022 Case Law Report from eDiscovery Assistant is now available for download. That case law report is a little bit different this year, as I’ve mentioned on our broadcast. We focus on two main areas developments of case law and then takeaways to be looking forward to in 2023. Huge thank you to our sponsors of that case law report ModeOne Technologies, Evidence Optix, ACEDS and Practice Aligned Resources (PAR). So thank you to all of them for their contributions.

Kelly: David, you also put out a case law report from Relativity this year. What report does that tell us about it?

David: Thanks, Kelly. It’s the 8th Annual Data Discovery Legal Year In Review. When we started doing it eight years ago, it was easy to find cases that no one else had covered. Now, in the past eight years, there are so many great resources for case law, but when I’m researching these things, it’s late nights trying to find cases that tell an interesting story that people haven’t covered.

David: Now, we want to know about the whole year and law, but you can’t do it in one ebook that is not going to be a War and Peace length treatise. So what we do is try to find cases that have interesting fact patterns that really bring the story home. And we do cover some cases that others have covered, and luckily, you and I cover some of the same cases as well because they’re just that important. But the Data Discovery Legal Year in Review, our 8th edition is now out there.

Kelly: Yeah, and I think one of the things that I always like about your report, David, is it’s not just limited to eDiscovery, it also covers data privacy and lots of things that are happening in the world of ESI. It’s an important edition. Thanks so much for all the work that you do to put that out every year.

David: Absolutely. Thank you.

Kelly: Okay, second announcement. Most of you know that next week is Legalweek in New York City. Both David and I will be speaking on separate panels at Legalweek, and we invite you to join us. I’ll be speaking on a panel that is sponsored by Onna titled “Navigating the Challenges of Alternate Types of Data in eDiscovery.” David, what is the panel that you’re doing with Relativity?

David: We are doing “eDiscovery in the News: Legal and Media Perspectives,” and we’re honored to have the Honorable Tanya R. Kennedy joining us. Justice Kennedy, of course, is on the Appellate court. The Appellate division first judicial department in the New York State Supreme Court. She’s going to be giving us the legal side. We’ve got two lawyers who are also journalists—Stephanie Wilkins, the editor in chief of ALM’s Legal Tech News, and Joe Patrice, senior editor at Above the Law. He’s going to be our curmudgeon muck raking lawyer on the panel. Of course, we’ll have Isha Morath, legal technology reporter at Legal Tech News.

David: We’re going to talk about the legal side, talk about the journalistic side. It’s a CLE. We’re going to have some ethics credit as well. And not only legal ethics, but journalistic ethics. It’ll be a fun time, but sadly, it is at the same time as your panel, Kelly.

Kelly: I know. I’m really sad. Those of you who did not participate in the University of Florida Levin College of Law eDiscovery Conference, you will want to check out the links that will be posted on LinkedIn, other social media platforms from Justice Kennedy’s speech that she gave her keynote from the UF Law eDiscovery Conference on Diversity, Equity and Inclusion. It was phenomenal. I have to say that it really brought the issue very much to the forefront for me of understanding. I encourage you all to take a look at that. Of course, Joe used to be my editor at Above the Law, and I love Stephanie and Isha’s work as well. Really excited.

Kelly: Sorry that I’m going to miss that panel. But for all of you that are watching, we came up with a little thing that we thought would be amusing. So given that both of our panels are at 11:30 on Wednesday during Legalweek, if you’re watching today’s broadcast and you attend either one of our panels, come up to us after the session is over and give us a business card or let us know that you were there. We’re going to keep track of how many folks who watched our episode today come and say hi to us after our sessions. If David has more people coming to his session, then we’ll pick a winner and give them some great Relativity merchandise. If I’ve got more people who come to my session after watching the 100th episode, then we’ll pick a winner from those and send out some great merchandise from eDiscovery Assistant so come and see us.

David: My colleague Guss Tsatsakis noted that we’ll have to get something out to the lucky winner there. Looking forward to it, Kelly. My big regret is I’m not going to be live, tweeting or in the audience for yours, but we’ll look forward to hearing about it, though.

Kelly: Same, David. Let’s dive into our programming for today. In lieu of covering a specific case for our 100th episode, David and I put together a list of the top ten takeaways from our first 99 episodes of Case of the Week, using some case law and also some current events to kind of keep things interesting. For those of you who watch this series every week or have seen it just a few times, you know that the takeaways are really the focus of the Case of the Week, so we’re looking at each decision in terms of what are its practical implications for litigators and professionals who are engaged in the ediscovery space. With that being said, David, I’m going to let you kick it off with our first takeaway.

David: Let’s go. All right. With the standard disclaimer that neither one of us is providing any legal advice here, we’re not speaking for our employers. To the extent it sounds like legal advice, it’s not. Please consider it friendly advice. This is an educational broadcast.

Top Ten Takeaways from eDiscovery Case Law

  1. Lack of Competency Could Cost you Millions or your License.

David: With that disclaimer out of the way, the first top ten takeaway tip (there is an alliteration tongue twister there) is lack of competency, could cost you millions or your license. This one goes way back. I think the stage was probably set in 2012 when the American Bar Association added Comment Eight to Model Rule of Professional Conduct 1.1, and that was about wanting lawyers to have technical competency.

David: Now, of course, how do you define technical competency? Different state bars have done it. And a story I’ve told a few times is I was on a panel in 2012 when this was announced. One of my co-panelists had a photo of a Wendy’s Hamburger on his slide saying, “Where’s the beef?” The point was that this is not a binding rule. It’s not even in the rule itself. It’s buried in Comment Eight. The issue was that the state bars took that and ran with it.

David: Now there are over 40 states who have this duty of ethical competence. Once again, it differs from state to state. California had an ethics opinion a few years ago that put it best. You basically got three choices either know the technology, retain the services of someone who does, or decline the representation. And these stories have come out in the case law that Kelly and I both have covered. The imbroglio of Alex Jones over the past couple of years has been one. There was so much egregious discovery in that case, it would take too long. We could do ten broadcasts on that one alone.

David: But one of the things that came up was the use of Dropbox and the production of text messages and the cross examination of Alex Jones and Heslin v. Jones, the Texas matter. There was litigation in both Texas and in Connecticut, as viewers of Case of the Week know. Whether you call it a snapback, as it’s called under Texas law or a clawback under the federal law—we’ll be getting to that later in the broadcast—you’ve got the opportunity to do that. Alex Jones’ counsel did not avail himself of that opportunity, and it had very, very serious ramifications.

David: Kelly, I know that you have covered on Case of the Week some of the interesting ones. DR Distributors, one of those cases that keeps on giving.

Kelly: That’s kind of the big one, right? I think each one of these examples that we picked out here, Alex Jones, DR Distributors, the In re Facebook case that was just recently covered on Case of the Week, all of these illustrate different examples of how lack of technical competence really came back to bite someone.

Kelly: In Alex Jones, you’ve got the inadvertent disclosure of Alex Jones mobile device by his counsel via a Dropbox link. In DR Distributors, you have the failure to preserve information by failing to even conduct an appropriate custodian interview of the client in the very first instance. And so you had spoliation; that will cover even more in the sanctions discussion. In re Facebook really was every bit of, I think, not lack of technical competence, but lack of cooperation may be a better example there.

Kelly: Then I think, also some things in the news, right. We had a recent issue where the government put up some documents from the January 6th hearings without redacting the Social Security numbers of those who had come through the White House on the visitor log. And it was a simple notion of having not looked at a tab on the spreadsheet before putting it out to the public.

Kelly: We’ve seen other redaction issues with Wells Fargo in the past that we’ve discussed on Case of the Week. These are all examples of technical competence that can get you in a lot of hot water. We’ll discuss some of them as well as sanctions. I think the real takeaway here is you’ve got to understand the sources of ESI that your clients are using and how you will handle each one of those sources, from soup to nuts. Whether that’s mobile devices, Teams data, emojis, text messages, email, threading, all the things we’re going to talk about, you need a plan or you need to have someone who has a plan.

David: Great. Kelly, before we leave this topic, one thing we should add is no court, no bar grievance counsel is expecting you to go out and get a PhD in computer science. It is knowing how the technology is used. That’s why I love that California ethics opinion, because you’ve got the option of going out and retaining an expert. One might say Kelly Twigger and ESI attorneys, but whatever that may be, you’ve got the ability to go out and get an expert, but you just have to know what’s going on.

Kelly: Yes, I definitely recommend you to reading that California ethics opinion. It does lay out exactly what you need to be responsible for. I would love for more states to adopt that to give lawyers a sense of what their true competence needs to be in this area.

2. Timing is Everything

Kelly: Let’s move on, David, to our second takeaway on our list of ten, and this one you’ve heard me talk about time and time again on the Case of the Week, and that is timing is everything. You need to keep track of the timeline of your case as it pertains to custodians, sources of ESI, and efforts taken by both parties to preserve, identify, collect, and produce information. You can do that as easy as just keeping tabs on an Excel spreadsheet. But if you keep that information documented, including the negotiations that happen with opposing counsel regarding individual requests, specific categories of data, you’re going to be able to have a better record if you need to move forward on a motion to compel or a motion for sanctions, and you’re going to have the specific factual information that we need. So document, document, document. The timeline of the case is what is incredibly crucial.

Kelly: We’ve also talked about on the Case of the Week that you need to be able to justify your billing. You also need to be able to have specific facts to put to the court. We’ve had a number of decisions on episodes where the counsel putting forth information, just didn’t give the court enough facts to make a determination. And the courts actually use language saying, “we don’t have enough information from counsel here to be able to make this determination.” You’ve got to bring specific facts to the court. David, what do you have to add here?

David: I think you’ve hit a lot of it. One thing is keeping the track of the timeline. This may seem rudimentary, but we still see cases on this. People talk about when there is a reasonable anticipation of litigation, and on that timeline, when preservation needs to begin. It is not when an action is filed. Many of the viewers of Case of the Week are very sophisticated practitioners, people who are involved in the process, be they technologists, paralegals, or attorneys. Nevertheless, we still see these cases where they say, “oh, we didn’t preserve because there was no litigation filed.” It’s the reasonable anticipation of litigation. There’s case law ad nauseam on this. Just remember when the clock starts and then keep timing going on.

Kelly: Right. I’m going to just double back there. Even though we said this is not legal advice, sometimes when the complaint filed is when your duty to preserve is triggered. Just as an addendum.

Kelly: David, you want to move us on to number three?

3. Be Careful What you Agree to in your ESI Protcol

David: Let’s do it. Be careful what you agree to in your ESI protocols. This has become a big issue in a lot of the technology assisted review cases that we’ve seen over the last several years. The ESI protocol can be, to use the expression that’s been used a lot, a sword and a shield. There has been TAR case law on this. There have been case law just involving the regular production of ESI when clients go in and the parties and their counsel agree to an ESI protocol and they later realize, “boy, we should have taken into account what might happen down the road as opposed to what we knew at the time.” Kelly, you’ve covered a lot of these cases on Case of the Week. Raines Group v. Rain Capitol was one of them.

Kelly: There are multiple decisions that we’ve covered on Case of the Week that have shown us that a party will be held to what they agree to in an ESI protocol, especially once the court’s entered it as an order. We’ll talk later about how you can use a violation of ESI protocol under Rule 37(b) for sanctions.

Kelly: We did write a blog series on eDiscovery Assistant about what to include in an ESI protocol and the various issues to think about. Multiple cases highlight some of the key issues that counsel could have done better in negotiating their ESI protocol. David, you talked about search terms. There’s a lot of interaction between search terms and TAR. The Raine Group v. Reign Capitol case is one of them. That was episode 65. TAR and the intersection with search terms we’ve seen multiple times. In re Valsartan, which was episode 16 very early in our Case of the Week series.

Kelly: This is something that’s been happening for several years, and we’re not quite getting clarity in the law, although we did have some more recent decisions that we discussed at UF Law eDiscovery Conference that were about that and also covered on Case of the Week.

Kelly: Email threading is a big one for the ESI protocol. We saw that in the In re Actos End Payor Antitrust Litigation, where the parties didn’t quite cover in detail what they needed to handle as far as email threading goes. We’ve seen failure to include metadata specifications in the protocol that was covered on episode 89. That was the Benanav v. Healthy Paws Pet Insurance case.

Kelly: Then I think one of the bigger issues that we’ve seen that needs to be covered in your ESI protocol is in the Nichols v. Noom case that we’ve discussed almost ad nauseam, because that’s the decision in which Judge Katherine Parker from the Southern District of New York stated that hyperlinks are not attachments. In that particular case, which she decided correctly based on the facts, she made a blanket statement that hyperlinks are not attachments, because sometimes a hyperlink is simply a link to something on the Internet. Sometimes a hyperlink can be an attachment to a document, say, in Google Suite or in Teams.

Kelly: That’s going to become a very big issue in eDiscovery as to how hyperlinks are handled. You need to be aware of all of those issues, be focused on them for drafting your ESI protocol, and you need to think about them before you draft it, because if you leave things out or if you lock yourselves into a position, the courts will hold you to that.

David: Kelly, this is a great one. We don’t want to do too much foreshadowing about what comes later in the broadcast, but one of the things in Nichols v. Noom was that the plaintiffs in this case, Nichols, went in, and once they got into the production, they realized, “whoa, Noom has this policy of really doing hyperlinks instead of attachments.” So instead of getting into the corpus of the documents and the data and realizing this, they could have gone back and included both hyperlinks and attachments somewhere in the ESI protocol. As Kelly mentioned, you get into the issue that hyperlinks can be very ephemeral. There’s technology issues to get around that, but something to remember, think about these things when you enter into the ESI protocol, not when you get into the corpus of the data.

Kelly: Just to clarify a little bit, David, in Nichols, the parties did contemplate the fact that there were hyperlinks, but what they said is that Google Vault could be used to collect information from Noom’s email because they used G Suite. That’s the default tool that Google has to be able to export information. The reason that that was a problem is because Vault didn’t keep the attachments to the hyperlinks that were there. So when they exported the information, they had the hyperlinks, but not the documents that went with them. They did a little bit but not enough.

David: They did, and you’re absolutely correct on that. But there also was testimony that they said they were surprised by the amount of hyperlinks once they got into Noom’s data. And although they didn’t say this, it almost appeared there was a generational thing going on, because when they testified that they got into the data and saw many more than they thought they were going to see, it seemed as though they were caught flat footed by the amount of hyperlinks they actually saw.

Kelly: I would agree, which is why I’m always advocating for get in there, understand these issues, or get someone to help you if you’re not sure what the technical issues are. Let’s move on to number four, David.

4. Know the Nomenclature and the Norms

David: Hey, we’ve got two coming up here that are knowing what to understand. We’re going to have a little bit of fun with the first one. It perhaps is the less important of the two, but nevertheless, number four is know the nomenclature and the norms.

David: This is really how to work with the courts and let them know that you know what’s going on. Nomenclature can be a big issue. We are going to thank Judges Peck and Francis, two of the retired jurists who are institutions in the field of eDiscovery law. One is Judge Francis, who now is with JAMS, of course, and serving as a Special Master in the case In re Diisocyanates. It is a tongue twister. The reason we include Judge Peck here is we did a broadcast where Judge Peck gave everyone a tutorial on how one should pronounce Diisocyanates.

David: Kelly, there is another piece of black letter eDiscovery law that sometimes has been mispronounced. And I think you and I both agree that perhaps it may be the most mispronounced case in the history of eDiscovery law. Might be. We’re not going to go out in the limb. Kelly, which one do you think it is?

Kelly: Yeah, well, it is definitely the Zubulake decisions from Judge Scheindlin, which really formed the basis of the 2006 amendments to the Federal Rules of Civil Procedure. We see a lot of Zubulake. How do we really pronounce that? I think the point of the nomenclature here is not only understanding how to pronounce the names of the cases that you’re discussing with the court, but also that you need to understand the phrasing, how words are used, what the terminology is in eDiscovery.

Kelly: If you’re coming to the court on a motion to compel and you want to talk about proportionality, you need to be prepared to articulate what the different factors are on proportionality and how the courts have looked at it. You’ve got to know the nomenclature of eDiscovery. So pronouncing the decisions correctly is one piece of it.

Kelly: That was more of a fun fact for us as we’ve tried to navigate throughout Case of the Week, but also panels with Relativity and others making sure we pronounce case names correctly.

Kelly: I think we covered two of the decisions from the In re Diisocyanates MDL on episodes 90 and 97. One of those was from Special Master Judge Francis, who is a close colleague of both of ours and Judge Peck as well. Those guys contribute so much to our space and we’re so grateful for them.

5. Understand the Rules and How to Leverage Them

David: Great. And Kelly, that’s a great segue into number five, which is understand the rules and how to leverage them. This is such a huge one. In the world of eDiscovery law, we often get into the tunnel of the Federal Rules of Civil Procedure. Don’t get us wrong, the Federal Rules of Civil Procedure are important. But you’ve got to remember the other rules that are going to affect you beyond the case law when you get into any discovery case, maybe most notably the Federal Rules of Evidence 502(b) as in Bravo, 502(d) as in Delta, have become a really important factor. We talked about the snapback under Texas law earlier, under Heslin v. Jones, the Alex Jones cases.

Kelly: 902 as well with the authentication.

David: Authentication of social media and others. So you got to remember the Federal Rules of Civil Procedure and Federal Rules of Evidence. But the big one that often gets overlooked and miss this at your own peril are local rules. The local rules often augment and go beyond on occasion what the Federal Rules may dictate. We also can’t forget that. We also are in the tunnel vision and eDiscovery law of the federal courts when the vast majority of litigation occurs in state courts. So state laws on these issues, a lot of times they do track the Federal Rules, but not always.

Kelly: I think there are 42 states that track the Federal Rules, but some of those, like five or six of those have slight tweaks.

David: Exactly. But there is help on this. I’m biased because I’ve worked with Judge Patricia Barksdale of the Middle District of Florida along Judge Julie Sneed, also of the Middle District. They’ve both been on our judicial panel at the University of Florida Levin College of Law eDiscovery Conference.

Kelly: You’re biased because you’re a double Gator.

David: Well, I’m only a single Gator, though (but Go Gators), the University of Florida Levin College of Law, and Kelly and I both enjoy being on the committee and the faculty of that conference. But the point on this one is a guide they’ve put together called Middle District Discovery, that is the United States District Court for the Middle District of Florida. Check that out. It’s a great guide, especially for those practicing in the Middle District of Florida. But nevertheless, even if you’re outside that district, it’s a great guide to give you some insight Federal Rules and frankly, just eDiscovery law. So I like Go Gators, of course, but remember, there are helpful guides around.

Kelly: David, even if you’re not practicing in the Middle District of Florida, it’s a fantastic document to look at and be able to structure what you’re doing. Even if you’re in a district court or a state court that doesn’t have similar guidance, there are some other district courts that have some additional guidance. That Middle District discovery guide is available in eDiscovery assistant if you’re a user. The Northern District of California has great guidance. The Southern District and Eastern District of New York share rules. They have a lot of guidance. Texas state courts have guidance.

Kelly: It depends on the courts you’re in. But if you’re looking at the case law map from eDiscovery Assistant, where you see the larger number of cases, whether it’s in the Federal Circuit Court map or you’re looking at the State Court map, those are the jurisdictions where you’re going to see more guidance.

Kelly: But I think even when we’re talking about the rules, there are some really keys that you need to start knowing and understanding very effectively in order to be able to make arguments in eDiscovery.

Kelly: Preservation, which is covered by Rule 26, is key now more than ever with data from mobile devices that are implicated in just about every matter, you need to make sure that cell phone data is preserved. In the Hunter vs. City of Seattle case, which was episode 98 just recently, we saw that you need to proactively make sure that the other side is preserving their mobile device data. Otherwise it could be lost, which it was in that case.

Kelly: We’ve seen in episode 72 in the In re Pork Antitrust Litigation that possession, custody, or control under Rule 34 has become a very hot topic. That’s not the only case that’s covered possession, custody, or control. You need to have a firm understanding of how the language of these rules are being interpreted in the eDiscovery context for each specific source of ESI.

Kelly: Proportionality, form of production is becoming very important with what we call non-traditional sources of ESI. Signal data, telegram data, text messages, emojis, all the different stuff that we’re seeing. Manner of production under Rule 34 is becoming important. I’ve been advocating for years that I think information, as it’s kept in the ordinary course of business, really is not the appropriate language for ESI when it comes to manner of production. You’ve got to think about those things and plan for them. That knowledge of the rules can help inform how you draft that ESI protocol.

David: Absolutely.

6. Set the Stage for Sanctions

Kelly: Moving from number five on knowing the rules really sets the stage for us for number six, which is set the stage for a potential sanctions motion. This particular takeaway is one that we probably discuss on 75 out of the 100 episodes of Case of the Week that we’ve done.

Kelly: You’ve got to understand the difference between sanctions under Rule 37(b), which provides for sanctions for violation of a court order and does not require a party to show intent, versus sanctions under Rule 37(e), which provides for sanctions in an event of a failure to preserve and does require intent for the heftier sanctions of an adverse inference or a default judgment — any kind of dispositive sanctions that might occur.

Kelly: When you are setting this stage, that means you’ve got to do the things that we talked about in some of these earlier takeaways, where you are documenting everything that’s happening, when you have the first inkling that you think the opposing counsel did not preserve information or isn’t providing you what you need. You have to be willing to go to the court, and you have to go to the court with specific facts.

Kelly: We talked about documenting earlier. It’s really important that you go to the court with, here’s the information we need, here’s why we need it, here’s why we know they have it, and here’s the efforts that we’ve made to try and go and get it. You’ve got to set that stage for the sanctions from the very first time that you get an inkling that something is not going the way it should in discovery, and you’ve got to be willing to go to the court.

Kelly: The other thing that we see is that in case law is that the sanctions are not just monetary sanctions, although we’ve got some significant monetary sanctions that were issued in the DR Distributors case, in the In re Facebook case that we just covered recently. But we’re also seeing exclusion of witnesses, exclusion of documents that experts may rely on was the most recent ruling from the DR Distributors matter on Episode 94. We’ve got exclusion of documents generally if they’re not produced promptly in discovery. What we’re finding a lot of these days are sanctions for exclusion under Rule 37(b), which means you had a court order to produce them that likely came about either on a motion to compel or from an ESI protocol, and you failed to produce them. Sanctions are then warranted because you’ve got the lower bar of not having to show intent.

David: Kelly that is a huge issue because when the Federal Rules of Civil Procedure were amended in 2015, when that intent to deprive standard came into Rule 37 to get the most serious sanctions under 37(e)(2), it was like, “okay, it’s going to be so tough to get sanctions, you don’t have to worry about it.” That is so wrong. Judge Rodriguez has articulated this many times. It’s come down in the case law. You do not need to show that intent to deprive if you violate a court order, which is 37(b) as in Bravo, as opposed to 37(e) as in Echo. We can’t stress enough that judges have far more tools in their sanctions toolbox than just 37(e), even if it does involve ESI. I know there are debates on whether ESI has to go into 37(e) but violate a court order. There’s very little doubt in the case law that sanctions can be coming.

Kelly: That’s right. We also had one episode on our Case of the Week, which was way back at the beginning, episode 6, in which the court found that bringing a baseless sanctions motion will also result in sanctions against you. So that episode was Bragg vs. The Southwest Health System Inc. That was actually from the district court here in Colorado.

Kelly: You’ve got to know and understand these rules. You’ve got to set the stage for sanctions when you can. That requires you understanding the individual prongs of each of those rules and what you have to meet and making sure that you’re bringing a motion in good faith, or you’re going to find it flipped around on you to the court. Okay, David, do you want to take us to number seven?

7. Don’t Play Games in Discovery — Perceived or NOT

David: Let’s do it. This one is don’t play games in discovery, perceived or not, and this will not go well for you. We’ve covered these cases in an extreme because, sadly, it happens more often than you think, and these are the reported decisions that you see. A lot of times this discovery bad behavior doesn’t even make it into reported decisions. But playing games is not going to go well for you at all.

David: Judge Matthewman wrote a law review article on this; gotcha eDiscovery is not going to go well. We’ve had cases that I wrote about in my law review article a couple of years ago, and these are literal cases where they had to solve and resolve sanctioned disputes by flipping a coin on the courthouse steps, by a game of rock, paper scissors. You don’t want to do that. Twitter v. Musk. We’re going to get to one of those decisions in a minute. But there have been multiple decisions coming down. Kelly, you were talking about In re Facebook earlier, and you had that as an episode of Case of the Week.

Kelly: Yeah, the games in In re Facebook, I think if you take a look at that decision, they were pretty substantial. Probably that the client had decided they didn’t want to produce information and instructed counsel not to do it is kind of what you see when you read between the lines of that particular decision. But I think the whole thing here is the perceived or not part of this takeaway is important because even if you don’t think you’re playing games, but you’re not doing things the way they should be done, it’s not going to go well for you at the court.

Kelly: There’s a decision that we did very early on in Case of the Week. I think it was our very first episode, actually, was the M1 5100 decision, which was from Judge Matthewman, where Judge Matthewman talked about counsel not overseeing collection from their clients and instead allowing self collection from their clients; that was not acceptable. That case sort of overlays the technical competence that we talked about as takeaway number one, but the court also perceived it as, “hey, you haven’t done your job, and yet you’re coming to me and asking me to resolve discovery issues. You’ve got to do your job.”

Kelly: Whether you’re really playing games or whether you’re just not doing your job and it comes across to the court that way, it’s not going to set you up well. We all know that judges are human and their perception of how counsel behave throughout a matter has a significant impact on how things are handled. So don’t detract from your clients meritorious case by playing games and discovery.

David: M1 5100 is a really important one on that, and Judge Matthewman talked about it on the Relativity Fest Judicial Panel. In that decision, which has some pretty egregious allegations of age discrimination, we really got into the issue of should there be a complete ban on self collection. I don’t think anyone is advocating for that. But counsel, whether it be the attorney in charge, whether it be the paralegals running discovery the technologists are involved in, as well, they have got to be part of this process. You can’t just say to your client, “okay, go collect the ESI, bring it in, and that’ll be fine.” M1 5100 has taught us—and there are other cases besides Judge Matthewman’s on that—self collection, especially unsupervised self collection, is a really bad idea.

8. Don’t be a Slacker on Slack

Kelly: The unsupervised part is the key. Moving on to number eight. For this one we got some more alliteration for you. Don’t be a slacker on Slack.

Kelly: This one really goes to talking about the alternative sources of data of which Slack has been a key one in decisions that we’ve covered on Case of the Week. We’ve covered ten separate decisions on Case of the Week that have involved Slack data. One of those was Episode 48 from December of 2021, which talked about the fact that the production of Slack messages is in fact covered by Rule 26. In the Profit Point Tax Technologies case, we talked about how the form of production and manner of production are really key with sources like Slack that are not custodian based. We talked about metadata in Slack, but also metadata as it relates to alternative forms of ESI. I mean, even when we’re talking about social media, you need to have the URL, you need to have the username, you need to have various metadata fields that fit with the source of ESI that you’re talking about. You’ve got to understand the scope of collection and make decisions on context carefully in thinking about particular sources of ESI.

Kelly: Slack is one if I have a message that hits on search terms, how many messages above that and how many messages below that are going to be contextual? That was an issue that came up in the Red Wolf case, which we’ve covered on Case of the Week, where the failure to preserve and collect Slack messages appropriately resulted in spoliation and ultimately a default judgment. The Drips Holdings case talked about a failure to retain Slack messages and resulted in a permissive adverse inference instruction. We’ve seen some significant sanctions on Slack data, but all of these decisions pertain to any of these kind of alternative sources of data. You’ve got standards out there now about these types of data that you’ve got to know and understand. So be prepared for those.

David: Before we move on to our next one, hitting on Red Wolf Energy Trading v. BIA Capital Management, that was the one out of the District of Massachusetts. This really highlights the importance of your eDiscovery consultant, your eDiscovery vendor, because the issue in Red Wolf was that the consultant that they retained was unable to process and work with the Slack messages. You’ve really got to work as a team, the client counsel and your eDiscovery consultant. Obviously in 2023, you need a consultant who can work with Slack.

Kelly: Yeah, and I think I was laughing because that’s sort of the understatement of the century. In that case, they hired a consultant from Kazakhstan who’d never even worked with Slack before to pull messages from Slack. Some serious problems there. I think anybody who’s probably watching this broadcast and is knowledgeable in eDiscovery understands out of the gate what a cluster that particular situation was. There were tools in 2019 when that collection happened, and there are tools now that integrate directly with Slack and allow you to be able to set the parameters of the kinds of issues that are addressed in case law that we just talked about.

9. Don’t Count on the Musk Exception for Privilege

David: Exactly. And let’s go on to number nine. Kelly and that is, don’t count on the Musk exception for privilege. And of course, this is yet another one of these cases that keeps on giving. This is Twitter, Inc. v. Musk. Of course, this was Twitter before Elon Musk owned it.

David: This was a case where the previous Twitter was trying to get discovery on conversations that Mr. Musk had from SpaceX and Tesla email accounts. Twitter argued that the privilege was waived because Mr. Musk had communicated with counsel on the work email for both Tesla and SpaceX. However, Mr. Musk countered that as the CEO, no one was permitted to read his email. The evidence showed that, in fact, they had not read his email. Thus, this is the Musk exception to the attorney client privilege rule that basically, at least in the United States, if you’re not Elon Musk, you have probably waived your right to the attorney client privilege if you communicate with counsel on work email because you basically have little expectation of privacy. Most computer usage rules in most organizations prohibit that.

David: In Peerenboom a few years ago, back in 2017, that case came up and it went in the opposite direction. The CEO of Marvel, which was a subsidiary of Disney, was communicating with counsel on the work email. Disney’s computer use policies said specifically that “you don’t have any expectation of privacy. We can read your email.” Mr. Musk got away with it in this Musk exception on Case of the Week, and we covered it at Relativity. Don’t expect that to happen there’s the In re Asia Global Crossing Standard from the Southern District of New York in 2005 that a lot of courts use. Judge Sneed on the University of Florida panel had a decision where she also went the Peerenboom route. Don’t count on this Musk exception, Kelly.

Kelly: Don’t count on that. Yeah, the Musk case was really an outlier. And I think we’ve seen a lot of privilege issues on Case of the Week. One of the biggest things we saw recently was in the In re Facebook case in which there were a lot of privileged documents, and the notion was “if we simply copy outside counsel or we copy in house counsel on the document,” that those suddenly become privileged. We’ve seen that in a number of cases on Case of the Week. That’s not going to hold up in court.

Kelly: What we’ve also seen on privilege issues now is we’re seeing courts asking for a sample of the alleged privileged documents to be provided in camera. And so we’re seeing a lot of federal judges doing in camera review of potentially privileged information to make a determination. If the sample set has a low percentage of privilege, it’s going to come back and bite you.

Kelly: Be careful with what you’re asserting privilege over. Make sure that your privilege logs are including the information that’s required by Rule 26 and that it is substantial enough to allow the other side to make a determination of whether, in fact, data is actually privileged. Kind of both of those pieces in this takeaway with regards to attorney client privilege.

10. It’s March Madness — Keep Your Eye on Where the Ball is Bouncing

Kelly: All right, our final takeaway for our 100th episode of the Case of the Week series is it’s March Madness, baby. You need to keep your eye on where the ball is bouncing. Those of you that know me well know that basketball is life and March Madness is my favorite time of year. So hence the March Madness theme.

David: Especially because Kelly Hardy Twigger was in fact in the Women’s Final Four for March Madness. So we would be remiss if we didn’t tell that.

Kelly: Many years ago, David! I think that really what we want you to take away here is that there are so many things that are happening in ESI that haven’t even hit case law yet. We’ve got TikTok, regulation of TikTok. What’s happening with that? We’ve got deep fakes. If you were at the University of Florida Levin College of Law eDiscovery Conference, you saw Jerry Bui’s keynote on deep fakes and all of the new technology that’s out there to be able to create fakes of video and audio that you need to be careful of. We’ve got emojis that are just coming into play in civil litigation that we’ve seen more of in criminal cases. And data privacy and protection. David, I’ll let you tackle the biometrics issue that we’re seeing.

David: It’s a big one. Of course, the first and the strictest one is the Illinois law, the Biometric Information Privacy Act. You’ve got these laws expanding. The first three were Illinois, Washington State, and Texas. And now other states are considering them. Not just freestanding biometric privacy laws, but they’re including them in other laws. Virginia has come out with one. California regulates it. But in Barnett v. Apple, Inc. Last year, we saw the issue come up. Now Touch ID and Face ID were seen as not violating Illinois’s BIPA. But you’ve got to look at other claims.

David: There was one involving Snapchat; Snap was the defendant. One involving TikTok. Of course, you’ve mentioned the Facebook litigation. So these issues are always coming up and there were huge settlements as well last year. Rogers v. BNSF Railway was one. Just keep in mind, keeping your eye on the ball, that different, emerging, and technology sources that have been with us for a while are still going to be really issues to consider. I guess the general lesson here is ediscovery beyond email.

Kelly: Absolutely. And I think what’s key here is that issue spotting. That’s something we talk about a lot of on Case of the Week, and issue spotting is key. What we’re trying to do is put those issues in front of you so when it comes up in a case, you can think, “hey, I need to make sure I’ve got my i’s dotted and my T’s crossed in terms of dealing with this type of information and understanding what’s already out there on the books.”

Kelly: We made a little list of some sources for you to be able to follow to be able to stay in touch with these. In addition to our Case of the Week series, we regularly follow law.com and Legal Tech News. David, you mentioned Stephanie Wilkins, who’s the Editor In Chief of Legal Tech News and Isha, I believe, is a reporter for Legal Tech News or law.com.

David: She is indeed technology reporter for Legal Tech News. And of course, a lot of that material goes on law.com as well. And you and I contribute from time to time as well.

Kelly: That’s right. We have the eDiscovery Assistant blog and the Relativity blog. ESI in the News is a recent newsletter that we launched at eDiscovery Assistant to highlight some of these issues. David participates in the law.mit.edu podcast. Of course, we mentioned both of our case law reports that we mentioned at the top of the broadcast. David, anything you want to add to that list?

David: I think we’ve covered a lot of it. Obviously. Check out eDiscovery Assistant. I hope you’ll read some of the stuff that I write as well. Check out both our year end reports. And Kelly, I think for this 100th episode, you have a few people you’d like to thank who made this all possible.

Kelly: I absolutely do, David. Thank you so much for that. That wraps our first hundred episodes of Case of the Week. David, first thanks goes to you. Thank you so much for taking the time to work with me and join us today for this milestone episode.

David: Hey, thanks for having me.

Kelly: Absolutely. Thank you to each of you watching and joining us on this journey through eDiscovery case law. And here’s to the next 100 episodes. A huge thank you to my team at eDiscovery Assistant, including Anna DeMasciale, Kirsten McPolin and Susan Krueger. The entire ACEDS team, for their support over the two plus years that we’ve been doing Case of the Week, especially Deja Miller, Katie Saylor, Maribel Rivera and Michael Quartararo.

Kelly: Thanks to each of you for joining us each week. Again, if you’re going to be at Legalweek, please be sure to say hello, whether it’s at a session or otherwise. If you’re interested in sitting down with us at all to see the roadmap for eDiscovery Assistant or the newly launched eDiscovery Academy, you can drop us a line at support@ediscoveryssistant.com, and we’ll help set something up.

Kelly: We’re going to be off next week while at Legalweek, but Case of the Week, we’ll be back on Tuesday, March 28. Again, thanks, David, for joining me, and everybody have a great weekend.

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