In Episode 118, our CEO, Kelly Twigger reviews the Court’s analysis on what custodians are required to provide ESI from in response to requests for production and the basis for that analysis in In re Meta Pixel Healthcare Litigation.
Welcome to this week’s episode of our Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. eDiscovery Assistant is a platform that helps lawyers and legal professionals leverage the power of ESI as evidence by reimagining how to conduct research for eDiscovery, as well as training in eDiscovery.
My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, as well as the principal at ESI Attorneys. Each week on our Case of the Week series, I choose a recent decision in ediscovery and talk to you about the practical implications of that judge’s ruling, what it means for you, your practice, and for your clients, and how to do the discovery of ESI better.
Unlike any other substantive area in the law, the constantly evolving landscape of technology means that trial courts on both the federal and state level are regularly issuing new opinions on parties’ obligations around ESI. Because the bulk of our learning in ediscovery comes through case law, diving into the details of those decisions and what our practical takeaways are is one of the best ways to understand the issues and details we need to focus on in planning and executing any discovery.
Before we dive in, if you haven’t yet had a chance to grab our 2022 Case Law Report, you can download a copy of that to see the landscape of decisions. Each of the decisions in eDiscovery Assistant is a public link, meaning that you can link to those decisions in your writing. You can also review the full text of the decision without having a subscription to log in.
Background and Facts
We’re going to dive directly into this week’s case, which is another decision in the In Re Meta Pixel Healthcare Litigation. This is the 12th eDiscovery decision in this case, and we covered one of the previous decisions on episode 115 just a few weeks ago, in which the parties had a dispute about the proposed ESI protocol in this case. I’ve selected this decision specifically because it addresses the issue of which custodians are relevant to what elements of a theory of liability, and a great way to discuss how crucial it is to tie what you are seeking to exactly why you need it.
This is the decision from United States Magistrate Judge Virginia DeMarchi from September 6, 2023. We are before the court on this decision on the plaintiff’s motion to compel the production of documents from specific custodians. Meta has already agreed to search the files of 30 custodians for responsive information. Some of those custodians were proposed by Meta, and some of them were suggested by the plaintiffs. The plaintiffs are now seeking additional custodians from those original 30.
The crux of the disagreement is this: The parties are arguing about whether the custodians that have been identified so far are likely to have documents that reflect the decision-making described in plaintiff’s Consolidated Class Action Complaint and documents relevant to those of plaintiff’s claims that require proof of intent, knowledge, or willfulness. The plaintiffs are asking the court to require production from additional custodians, including Mark Zuckerberg, who is the CEO of Meta, Graham Mudd, Erin Egan, Peng Fan, Luchen Foster, and Carolyn Everson. Now, there’s not any other information about who those particular custodians are in this decision, just that they are all executives with decision-making capabilities.
Remember, as a touchstone, that Rule 26 allows for the discovery of ESI that is relevant, proportional, and non-privileged. The plaintiffs here complain that the 30 custodians whose files Meta has agreed to search include no senior executives, and that therefore the custodial searches are unlikely to yield documents showing how critical decisions at issue here were made, including Meta’s alleged decision to permit advertisers to continue using sensitive health information obtained via Meta’s pixel to target advertising to end users. Recall that this litigation is about the placement of a pixel on a website that allows information to be tracked back to Meta based on users’ interaction with that website. The question here is whether placing those pixels on healthcare-related websites has privacy and other implications for consumers. The plaintiffs here alleged that, “while eliminating targeting based on health interest categories, Meta simultaneously encouraged healthcare providers and other covered entities to increase their use of the Meta pixel, allowing Meta to continue to collect identifiable health information about patients.” Meta argues that the agreed upon custodians, the original 30 that we talked about, will provide relevant documents and that any additional custodians are going to be duplicative and not proportional.
If you think about the facts here, you can see plaintiff’s point. The question and the theories of liability here require a showing of intent and willfulness, which means that the thought process and the ultimate decisions that were made are going to be of crucial importance to them being able to prove those allegations. What they’re alleging is that the custodians that Meta identified are not of a sufficient decision-making capability for them to be able to find that information in their files. Those are our facts.
The Court begins its analysis with the proportionality and relevance requirement of Rule 26. A party may obtain discovery of any non-privileged matter that is relevant to a claim or defense and that is proportional to the needs of the case. There are six factors in Rule 26 that determine proportionality. The Court does not go into those in detail here, so I’m not going to list them for you because we’ve done it so many times here on Case of the Week. The Court notes that there’s no question that Meta’s intent to the federal wiretapping and CIPA claims is relevant, and assumed that the requests for documents made from the plaintiffs would include documents bearing on whether Meta intentionally intercepted or knowingly received plaintiff sensitive health information without the necessary consent required under those two laws.
The Court first looks at whether the ESI from the proposed custodians is relevant, because we’ve got our Rule 26 requirements: Relevant, proportional, non-privileged. The court notes that Meta has made, “a thoughtful and concerted effort” to identify custodians to address seven specific topics responsive to plaintiff’s request. But it is not clear from Meta’s submission that any of these custodians had a role in the decisions that plaintiffs highlight in their complaint. That’s really crucial for the Court because they’re saying, we agree with plaintiffs here — the intent, the willfulness requirement that these allegations require are not going to be met by people who are not capable of making those decisions. The Court then agrees with the plaintiffs that documents reflecting how a decision was made are, “more likely to be found in the decision-maker’s files than in the files of those who are tasked with implementing the decision or communicating it to others,” and notes that Meta does not argue that any of the identified custodians made the decisions at issue. If Meta had been able to argue that the decisions at issue were made by the existing named custodians, we might have been in a different situation.
In terms of subgroups of the custodians that plaintiffs are asking for, plaintiffs offered a little bit more substantial showing based on allegations in the complaint and plaintiffs interpretation of publicly available documents and newspaper articles regarding the custodian’s responsibilities. Because plaintiffs don’t have first-hand knowledge, and they don’t have data yet about the custodian’s responsibilities, they’re trying to use the resources that are available to them to identify what these new custodians they’re asking for have in terms of responsibilities for these decisions. The Court also notes that as to another subset of the newly requested plaintiffs, that have only made a very slim showing for some of those custodians, offering only their title, who reports to them, or statements that they’ve made in the past on privacy.
For its part, Meta disputes the plaintiff’s characterization and the Court states that it’s not really in a position to resolve that issue without more information. We’ve got the plaintiffs who are saying we have all this publicly available information, which is what we’re basing our argument on, and Meta saying that’s just not true. No one is really showing us data from those particular individuals or from the individuals that have already been named that would satisfy what the plaintiffs are looking for. That, to me, would be the best way to answer this question, but that information isn’t before the Court, so it essentially can’t resolve it. The plaintiffs, according to the Court, have not shown that any of the other proposed custodians (besides the six noted) are likely to have non-duplicative documents regarding the question of Meta’s intent on the decision making at issue.
Having concluded that six additional custodians likely have unique and relevant information, the Court then looked at whether the additional requested custodians are proportional to the needs of the case. The Court looked at the additional custodians that the plaintiffs asked for and said six of these folks are going to be able to provide more decision-making authority, which is relevant to the allegations in the complaint.
The next question is, is it proportional? Meta argues, of course, that the data is going to be duplicative, but the court finds that because these folks are decision-makers, that the six custodians files are not likely to contain only duplicative materials. Instead, “the Court expects that Meta searches of their files can be narrowly tailored to the relevant subject matter.” The Court’s response to this is, essentially, I can see why there’s going to be some duplicative material, but there are ways to handle that both with technology, by removing duplicative documents, and also by tailoring it to the relevant subject matter of the decisions being made on the issues that are relevant to the claims in the complaint.
Specifically, the Court concludes that the plaintiffs have articulated a reasonable basis to believe that those six custodians are likely to have documents reflecting how relevant decisions were made, including Meta’s decision to permit advertisers to continue using sensitive health information obtained via Meta’s pixel. Those custodians that the court allowed are Mark Zuckerberg, Graham Mudd, Erin Egan, Peng Fan, Luchen Foster, and Carolyn Everson. But the court did not require that Meta’s search the other custodians proposed by plaintiffs, finding that plaintiffs had not provided any information or anything sufficient enough to allow the court to believe that they were in a decision-making capacity such that they could provide relevant information to the allegations in the complaint.
I picked this case because the notion of which custodians are key custodians and have relevant information within the bounds of proportionality is a very difficult one, particularly when you are in asymmetrical litigation like we are in this case. Nevertheless, even when you’re dealing with two sophisticated commercial parties, or even when you’re in employment dispute, it’s hard to necessarily know where to stop with identifying custodians.
The idea of “key custodians”, which is inherent in the case law, is a critical one. We’ve got to make sure that when we’re choosing custodians, we are choosing a subset of custodians that are going to provide the largest swath of information, knowing that we can then go back and ask for additional custodians if there’s a good faith basis to do so. But how do you do that? You set that up in your ESI protocol that the parties are going to agree to a certain number of custodians, or the parties may have already agreed you could even put that in your protocol, but that if information produced provides a good faith basis to ask for additional custodians or for a subset of information or search terms from a specific custodian, that the parties will meet and confer about that, and if they cannot come to a resolution, then they’ll go to the court.
In this dispute, Meta has already agreed to 30 custodians, and that’s a lot of data. Only the party with the data is really in a position to make a fact-based argument by reviewing data, and the plaintiff here, as I mentioned, is left to identifying publicly available data or data-produced and other related matters that might show the relevance of a custodian. What really was interesting to me here, as I noted, there’s no evidence put forth about each individual custodian and whether they had any role in the decision making that would either confirm or undermine the request for that information by the plaintiffs. Meta could have looked at the data it has already for the 30 custodians and provided some factual basis for why you wouldn’t need the data from these other custodians. According to the decision that we have in front of us, that did not happen here.
What becomes key here is the idea that the six additional custodians the court ordered Meta to search are decision makers, not the people who carried out the decision. That’s what’s important when you’re looking at making this argument. You have to show the facts that are going to convince the Court whether you are entitled to this information or whether you should be precluded from getting this information.
Also, worth noting here is that the plaintiff’s discussion of facts from publicly made statements or articles and just titles of proposed custodians was not sufficient to show the court that they would be decision makers to show the requisite intent on those allegations in the complaint. This is one of the themes that we reiterate week after week on a case of the week. You need specific facts to be able to show the relevance and proportionality in the discovery of ESI. Plaintiffs were able to show it for some of the custodians, but not for all of them.
We discussed identifying custodians in my CU Law School class this last week. One of my students asked the question that comes up all the time, “how can you trust that the other side is telling you the truth? How can you trust that they’re giving you all the custodians that you need to have for a matter?” The answer is — trust but verify.
Both sides have obligations under the Federal Rules of Civil Procedure here, and cooperation is one of them. But plaintiffs here have ways to determine if the additional custodians that the court did not grant may have relevant information. There’s a couple of different ways they can do that. They can review data that they receive, and they can depose the existing custodians and find out the role or who would have made these key decisions during those depositions. Both of those would be good ways to identify to the court that they have a good faith basis for asking for additional information from custodians. Again, it still has to go through the meet and confer process. If either of those methods would reveal that they have additional facts, they first raise that issue with Facebook through the meet and confer. That’s required by rules 26 and 37 before you bring a motion to compel like the one we’re facing here, and then with the court if necessary.
The key takeaway from this case is that custodians are difficult. You need to think through what’s happening in your case and what custodians you’re looking at, and then you need to start early with discovery so that you don’t get into depositions at the end of discovery that identify new custodians, and then you’re too late to be able to ask for them. As we’ve discussed before on Case of the Week, the courts are holding parties to the conclusion of discovery, and additional request for production —additional requests for custodians — need to be made at a minimum 30 days before, but I would advocate 60 days before would be the minimum of when you should be submitting that new information. Obviously, that’s subject to what happens in the litigation, but early planning, early depositions, early review of the documents when you get them is going to set you up for a better chance of success.
That’s our Case of the Week for this week. Thank you so much for joining me. We’ll be off next week because our team will be at Relativity Fest. I’m looking forward to speaking on the case law panel with David Horrigan. We’ll be out and about. If you’re interested in setting up a meeting with us, you can reach out to us at firstname.lastname@example.org. As always, if you have a suggestion for a case to be covered on Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.
Thanks so much, and have a great week.