In Episode 125 Kelly Twigger is joined by her special guest Doug Austin of eDiscovery Today as we celebrate the 3rd anniversary of the Case of the Week series! Kelly and Doug will review the developments in ediscovery case law over the last three years and how you can be prepared for how courts are viewing issues like emerging technologies, sanctions, modern attachments and more.
Hi and welcome to the third anniversary edition of our Case of the Week series brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, which is a platform that delivers eDiscovery knowledge on demand. With me today is my very good friend, colleague, and the editor-in-chief from eDiscovery today, Doug Austin.
Kelly Twigger: Welcome, Doug. Thanks for being here.
Doug Austin: Thanks for having me, Kelly. It’s good to be back. It’s been a while, and I’m excited to celebrate the third anniversary with you.
Kelly: I know. It’s insane. We’ve been doing this for three years.
Doug: I did not expect the confetti on you there. That’s pretty impressive I must say.
Kelly: Right. Deja, she’s the master. And also I love the new intro, Deja. Thank you so much for that, that was great. Doug, you’re back. You were with us the first time, I think, when we did the two installments on the DR Distributors v. 21 Century Smoking volume, I guess we should call it, which is a really interesting case that we’re still talking about. I actually used it in my eDiscovery class this year. You filled in for me a couple of times when I was out for health reasons. I really appreciate that. I’m super psyched to have you back today. Thanks for joining me.
Doug: I’m glad to be here and looking forward to talking about these cases.
Kelly: Let’s talk a little bit about what we decided to do this week because we decided to break it up a little bit given that it’s our three-year anniversary. We thought we would instead take a look back on the development of what we’ve seen in case law over the last three years and focus on some of the key issues that are constantly changing and particularly vexing for those of us trying to work through eDiscovery.
I’ll start, Doug, with just a little overview of what we’re seeing numbers-wise in terms of case law, which is pretty interesting. Just looking at the volume of decisions that we’ve seen in the last three years, it’s just increasing exponentially. Going back to 2021, we had 5,496 decisions. That was coming out of COVID, where we saw even more the year before. 2022 was just under that at 5,063. We saw courts doing less virtual hearings in 2022, so the numbers dropped a little bit. But in 2023, we’re right back on pace to either hit that 2022 number or exceed it. We’re at a little over 4,000 cases already just from the beginning of November, and it usually takes us 2-3 months after the end of the year to be able to get everything in eDiscovery Assistant from that current year.
So it’s kind of nuts where we are in terms of volume of case law and the ability to keep up with it. There was one other thing that I looked at that I thought was really compelling. And that is that if you look back at 2018 — which is just five years ago — there was less than half the case law on discovery decisions. There was only 2,049 cases in 2018. We’re now at two and a half times what we’re looking at in terms of discovery decisions every year. We’re going to talk about some of the reasons why that’s happening — lots of changes in the technology that are coming through in the case law. We’re still seeing things evolve from the criminal side over to the civil side. But of course, it always takes several years for those changes in technology to show up in the case law. Case in point — Microsoft Teams — where we just started seeing case law in 2023 on that as a data source. And then Slack, which we had seen some of in case law in 2021 and 2022. Doug, you want to tell us a little bit about how the Slack case law has developed over the last few years?
Doug: Absolutely, Kelly. Slack has been basically in use for about 10 years now, and so, as Kelly mentioned, there does seem to be a lag. But we started seeing some significant cases in 2021. The Benebone v. Pet Qwerks case was the first significant one that I think we saw, where the court there said that review and production of Slack is comparable to email. I think that’s one that a lot of people cited, as Slack is now really an important source to deal with. And then we’ve seen others, Kelly, you and I were talking about the Red Wolf Energy Trading, LLC v. BIA Cap. Mgmt., LLC case.
Kelly: This is one of my favorite cases of all time.
Doug: One of our favorites, a literal smoking gun message in Slack that they managed to empty 87 folders, but missed the smoking gun message.
Kelly: My favorite part of the Red Wolf case is that they “couldn’t find a commercially available tool” to collect Slack natively, so they hired a consultant from Kazakhstan who had never even worked with Slack before to export the material for them because they claimed that the cost of any sort of commercial tool was too high. I’m like — wait, was it too high? Was there not one? Because I know of some that existed then, but that case is crazy. But to your point, Slack is not only a very viable source of ESI, but there are a lot of intricate things with it that the courts are requiring you to know and understand and deal with.
Doug: Sure. And now you’re also dealing with, like the case this year, the Lubrizol Corp. v. IBM Corp. case, where the decision there was about the context around messages, responsive messages, and how far do you go either side of them. And so that was an interesting case where they said, produce 10 messages either side of a responsive message. So, there’s those types of issues that are coming into play because of the uniqueness of that particular ESI type.
Kelly: Yup. And there can be spoliation of Slack as well. The Drips Holdings, LLC v. Teledrip LLC case. All of these cases were ones that we covered on Case of the Week, so we’ll be sure to include links to those in the written post. I think Doug will put something on his blog and we’ll, of course, be putting it on the eDiscovery Assistant blog. So if you’re signed up for either one of those, you’ll be able to get it delivered to you. The Twitter, Inc. v. Musk case was a negotiation over the specific number of custodians for Slack, not for all ESI sources, but for Slack. I think that one’s a really important point. I am starting to see in cases that we handle different custodians for different sources of ESI. I may not need to collect email of some particular folks on a particular project because they just didn’t use email for it. All they used was Slack. And so I’ve got different custodians on different sources of ESI, and I think that’s something that we need to bring to everyone’s attention as well.
Kelly: Teams decisions. One thing to note is that the somewhat controversial decision in Deal Genius from Phil Favro — who is a special master — where he commented on the difficulty of Microsoft search and the ability to export information from Teams using search terms. Be aware of that. You need to be QC-ing what you’re looking at to make sure you’re getting what it is that you need to be getting from a collection perspective or from a preservation perspective, depending on how you’re dealing with things.
Kelly: Let’s turn a little bit, Doug, to cases about the so-called “modern attachments”, a term that Microsoft has coined. Tell us a little bit about what’s happening there.
Doug: I think the first notable case we saw was Nichols v. Noom Inc., where Judge Parker said the hyperlink files shouldn’t be treated as attachments. This year we’ve seen actually three cases that involve those. One was the In re StubHub Refund Litig. case, where they had agreed in the ESI protocol to treat them as modern attachments, but Stubhub found they were having a problem doing so. So the judge held them accountable for that and said you either need to produce them — do what you said you would do — or provide a 30(b)(6) witness that says what you tried to do. And then, of course, we saw the In re Meta Pixel Healthcare Litig. case, where Judge DeMarchi said they shouldn’t be treated as attachments. I found it interesting that people are kind of on both sides of the issue. Some think it should be, some think it shouldn’t be. I think we’re going to continue to see case law develop in this area as the technology evolves as well. It’s not going to be a static thing where there either blanket should be or shouldn’t be. I think it’s going to be situational.
Kelly: I do, too. I think — like all things in eDiscovery — we’re going to see a division among courts until there becomes some consistency, some messaging that resonates that brings things together. The first thing I think is we don’t know what to call these. Microsoft calls them modern attachments. Google calls them links to Google documents. In the original Nichols case, they referred to them as hyperlinks. The Judge there said, look, not every hyperlink is an attached document, so I’m not going to require you to do hyperlinks. I think the terminology is what we really have to figure out. I know that there’s folks at the Sedona Conference that are looking to address this. We’ve kicked around “pointers”, but pointers also has a separate connotation in source code, so is that really going to be a good solution? I think that solution has to come to light and then we have to start educating the courts. It really comes to the lawyers to educate the courts on how these issues are playing out.
Right now for us, we’re either providing for what we want in an ESI protocol, much like the language in In re Acetaminophen – ASD-ADHD Prods. Liab. Litig. or In re Stubhub, depending on how things are going to work. You could look at the language of either of those cases if you’re interested. The other thing is you’ve got to really understand what’s happening and how things are playing out and what the cost of things are going to be. But you’ve got to do early planning. This is definitely an issue. This one and Slack are definitely issues where you’ve got to have very early planning and consideration and transparency with what you’re doing with the other side. We’re going to just continue to see more and more developments in those areas as parties continue to leverage those platforms, and those become the main sources of ESI.
Doug: By early planning — before you get to the agreeing to the ESI protocol standpoint — because that’s what burned Stubhub and may ultimately burn Acetaminophen, because they have one where it’s really defining them as true modern attachments, and that may be a challenge.
Kelly: I think in In re Stubhub they basically agreed to something that they couldn’t live up to. In Nichols, the plaintiffs agreed to something that ultimately didn’t benefit them, because Noom produced documents without all the attachments. The plaintiffs thought there would only be a few, and there weren’t. The Judge said, well, this is what you guys agreed to, and they’ve already produced things, so there’s no reason for me to go back. There’s not really a basis to undercut the reasoning from the judges in those decisions in any way. It’s really on the parties to know and understand this technology and be able to leverage it appropriately.
Kelly: Doug, what are some of the ways that if folks want to keep up with what’s happening on these issues, that they can do that?
Doug: Well, obviously, Case of the Week. You’re getting a new case every week, so that’s certainly a good place. Obviously, I’m going to talk about eDiscovery Today, my blog, because I cover six cases a month, and I do have a modern attachment series that I’m continuing to cover new posts on probably a couple of times a month. I’m continuing to try to push that discussion forward a bit. Other resources — of course, we have — I’m on an EDRM case law webinar every month, so you can check that out. Obviously, your annual case law report that you guys have produced for the last three years.
Kelly: I like that. That’s a good one. Sidley also puts out a list of their notable cases each month. I do see a few other things come across. If you’re following eDiscovery on JD Supra or even on LinkedIn, you’re going to see a lot of folks putting out case law as well. Those are all ways to keep on top of what’s happening.
Kelly: Doug, let’s jump into the next thing we wanted to talk about, which is what we call emerging technology. Again, we’re struggling with the language because none of these things are really emerging technology. What are we talking about? Mobile device data, instant messaging — which we can also include text messages there, although they’re two different things — and video and voicemail. What kinds of things have we been seeing in the case law?
Doug: We’ve definitely been seeing some cases with regards to preservation of video. I’ve covered three or four cases where there have been sanctions relating to video spoliation that we’ve seen there. I think those are a couple of cases. I can’t find them in my notes at the moment. They’re there.
Kelly: The Aposaga v. Rite Aid Corp. case was the case that I covered most recently. That one was really surprising because it was a store that just didn’t keep the video of that day and the Court found that their failure to preserve was intentional and really issued some harsh sanctions. That was kind of a wake-up call if your clients are running retail establishments or where there is video on a regular basis, you need to be aware of their retention, and you need to have some pretty good policies in place.
Doug: Right. That was a state case, so obviously a little bit of different rules applied there. The Rapp v. Naphcare, Inc. case is another one. I think a running theme tends to be a unilateral decision by the party not to preserve video without counsel involvement that then comes back to bite them downstream. That’s certainly one of the issues I think I’ve seen.
Certainly, emojis is another one. One of my favorite cases, the Rossbach v. Montefiore Med. Ctr. case from a couple of years ago. I like to call it the case of the smoking emoji, because of the fact that they used an emoji that wasn’t possible with an iPhone 5. Then the In re Bed Bath & Beyond Corp. Sec. Litig. case this year with a smiley moon emoji. Judge McFadden had a great analysis of how meaning can be derived from emojis. I think that’s an emerging area. Another area I think is going to be emerging in a few years is the content that’s generated from generative AI. ChatGPT keeps track of the interactions you have. I looked a while back, and I still have interactions from January in there. So that’s ESI that’s being generated that’s eventually going to be discoverable as well.
Kelly: That’s pretty crazy stuff. You just covered a case where a Colorado lawyer used ChatGPT to do legal research and suffered not a good fate.
Doug: Right. He was suspended for a year. It’s 90 days, for sure, and then two years of probation where if he violates then he gets suspended for the whole year. You would think that public embarrassment would be enough of a motivation to get people not to do this but hasn’t been so far as we keep seeing these cases. So we’ll see if long suspensions may make a difference. I think even a bigger issue is going to be pro-se parties using ChatGPT to help them with their filings.
Kelly: There was a case on that recently as well. I think with all of these issues, our takeaways really are that you’ve got to know and understand the sources that you’re dealing with. I know I say this ad nauseam here on the Case of the Week, but the reality is that all these new sources of data that we’re dealing with and are becoming ubiquitous in our everyday lives means that you have to plan for them. You have to understand the metadata you want from them. You have to understand how you’re going to want to authenticate and produce them at trial. You need to be planning for them in an ESI protocol, and you need to be thinking about whether the other side has these data sources — even if your client doesn’t — so that you’re getting your preservation letter out there. In the Rite Aid case, one of the real benefits was that the plaintiff’s lawyer sent a preservation letter to the store within seven days, and so they could have kept the information. The more that you can think about these things in advance is going to allow you to be cost effective and avoid the fire drills that tend to cost a lot of money and can result in sanctions.
Kelly: The other one that we’ve seen a bunch of here, and I know we’ve got to move on — we picked too many topics already, Doug — was the notion of the BYOD policy and how courts are addressing possession, custody and control of an employee’s mobile device on behalf of the corporation. We could spend an hour going over just these couple of cases, but the In re Pork Antitrust Litig. decision, which found in favor of the company saying that they did not have possession, custody and control over individual text messages, incidentally, just resulted in those individuals getting subpoenas for the text messages. But in the Hunters Capital, LLC v. City of Seattle case, there were sanctions issued because there was a preservation letter and all of the officials from the city of Seattle — it was associated with the Capitol Hill protests following the George Floyd murder — and they essentially got rid of them. They all wiped their phones, and the Court only issued a permissive adverse inference instruction — which I found to be kind of wussy, but that’s what the Court did. And so that’s why we’re still seeing things all over the map as to how things are being carried out. You’ve got to know what’s happening, and you’ve got to get your preservation in place. For heaven’s sakes, make sure that your client is doing what you are making sure the other side needs to do, too. We’ve seen that a lot in cases too.
Doug: In re Pork was instructive from a requesting standpoint, because the requesting party was smart enough to subpoena the individual employees for the phones, as well as go after it for the company. So when the company was found not to be in possession, custody, and control of the phones, they still were able to get to the data through the third-party subpoenas, which was smart.
Kelly: I agree. Totally agree. Last topic. The evolution of sanctions and decisions on sanctions motions since 2015. Doug, what are we seeing there?
Doug: One of the things you and I talked about that I’ve seen a lot lately is parties going after 37(b) sanctions for failing to follow a court order, because 37(e) being the intent to deprive standard, and being such a rigid standard, I think that’s one of the things you’re starting to see is, hey, let’s try to get sanctions a different way, and the failure to follow a court order seems to be the popular way to go in that regard. And then I also think we’re seeing some instances where maybe certain courts are maybe interpreting intent to deprive a little more loosely than others, where it’s maybe not as blatant, but they’re still determining intent to deprive. Or maybe in some cases, inherent authority, still using that as a factor in the decision. I definitely think it’s important to keep in mind how they’re ruling and also how the specific judges are ruling, because there’s variability among the judges.
Kelly: Completely agreed. Know your judge. If you’re an eDiscovery Assistant user, you can search for your judge in the case law and be able to know exactly what they’re looking at, thinking, feeling in terms of all these kinds of issues in eDiscovery. And that’s a really valuable way to know what’s happening in the court you’re in. One of the things that I’ll say is that we’re seeing a lot of orders under 37(b) for failure to comply with the ESI protocol.
And sort of tangential to that is on December 7th, eDiscovery Day, I’m going to be doing a webinar with Judge Allison Goddard and Maria Salacuse from the EEOC (you can register here), where we’re going to debate the pros and cons of protocols. One of the things that they raised in our prep discussion is that there are some judges who are pushing back on entering ESI protocols because they don’t understand what they are and they don’t know why they should be entering them and they’re questioning what their authority is to do so. We’ll talk about that a little bit more, but I think you’ve got to understand with a court that you may have to go to the court and inform them why it is that you need a protocol in that case — what the benefits are going to be and what the complexities are of the technology, and you need to be prepared to do it in English so they can understand the implications, and you need to put it in the context of your discovery obligations, so that they have a reason and a basis for their authority.
Okay, other thoughts. We’re going to wrap up here quickly, Doug. Sorry about that.
Doug: It’s okay. One of the things that I think I’ve seen is a rise in cases dealing with proportionality. I’ve started to see a couple of cases where the judges have actually used the six proportionality factors of Rule 26(b)(1) to make the proportionality ruling, which I think is great to have that kind of walkthrough of the logic and the thinking of how they’ve decided whether the request was proportional or not. I’d love to see more of that.
Kelly: I know, because it’s unusual, right?
Doug: It is unusual.
Kelly: You see sort of a vague discussion of one or two factors and there’s never a complete walkthrough, so I agree with you.
Doug: We’ve seen a couple of cases — Bourell v. Ronscavage and Edwards v. McDermott Int’l, Inc. in the past couple of years where they really walked through that. Certainly, one of the things we’re seeing consistently is boilerplate objections. The 2015 amendments to the rules really crack down on that. For a while parties were being given leeway, but I don’t think I can recall seeing any cases recently where or boilerplate objections were given a pass and given another chance, they’ve just been denied out of hand. That language of overly broad, unduly burdensome, not proportional to the needs of the case, you’ve got to throw that away and provide more specificity in your arguments if you really want to have an effective argument in terms of against what the party is requesting. Interestingly enough, with those rule changes going into effect December 1, 2015, I did a couple of queries on eDiscovery Assistant. There’s still 702 cases with not reasonably calculated to lead to the discovery of admissible evidence.
Kelly: That’s what I was going to add.
Doug: Because the old language that’s not applicable anymore, and 761 cases with the overly broad, unduly burdensome. So a lot of people still haven’t gotten the message. I’ve even seen one or two judges still use the old language too.
Kelly: Right. I would agree.
Doug: So, it’s a process, but that’s one of the things I’ve noticed.
Kelly: Not all of the state courts changed those rules. A lot of the state courts adapted to the 2006 amendments, but not to the 2015 amendments. So it is a difference if you’re practicing in state versus federal court. On proportionality, you’ve got to have facts to make a legitimate proportionality argument. You can’t just throw out it’s not proportional to the needs of the case without giving the judge some underlying facts. We’re seeing that over and over again on the cases we cover here on Case of the Week.
Kelly: The last point that I’ll add is we’re seeing a lot more disputes about 502(d) orders and a lot more in-camera review of documents on privilege considerations. This debate about whether or not a categorical privilege log meets your obligations under Rule 26. I personally, as everyone here knows, I’m not a fan of the categorical privilege log. But I do understand the need to be efficient and effective in discovery, so I’m always open to it if there’s enough transparency.
Those are the things that we’ve been seeing. Those are the changes over the last three years in the case law and the big topics. Anything else that you’d add, Doug?
Doug: I really just say that one of the things you’ve got to do is just keep reading. One thing I always tell people is just set aside time every day to read 5-15 minutes — read up on cases, read up on trends, technology trends, keep informed with the platforms you’re using because they change over time. We were talking about Microsoft Teams as a primary example. They’re always changing it and how it’s implemented and so forth. Just continue to keep yourself educated, attend things like this which are free and easy to spend half an hour or so, and just keep yourself informed.
Kelly: I think those are great points, Doug. The other thing I’ll say is this — you and I spend probably as much time in eDiscovery case law as anyone — you’ll send me a case and go, “Hey, did you see about this one? What do you think?” and I respond “Hey, I hadn’t even seen that one yet.” And I’ll send you something. There’s a lot to keep up on all the time. Figure out what you need to keep up on for your clients, for your cases. You don’t need to know everything all the time. Learn some new stuff. If you haven’t had a case with Slack yet, or Teams, you’re going to — so try and get out ahead of that and learn what the issues are that you need to be on top of.
Doug: I’ll just throw in a quick plug because you never know what you’re going to need to look for. I’ll put in a quick plug for eDiscovery Assistant, because if you’ve got an issue, you can do a search there on any particular issue, in a particular time frame, judge, what have you, you can find cases quickly that tie into that that can help you determine how to address certain issues. It’s been invaluable to me over these years and certainly I would be remiss if I didn’t mention that.
Kelly: Well, thanks, Doug. I appreciate that. That’s why we built it. So hopefully it’s something that you can leverage for your clients anyone can use across the board. Okay, everybody, that is a wrap for our 3rd anniversary edition of the Case of the Week. Thank you so much, Doug, for joining me on this milestone episode and for all of your support over the last three years. It’s really been invaluable to me and I’m incredibly grateful for all that you contribute both through our partnership, but also just because we’re friends.
I am also incredibly grateful to each one of you who tunes in for us every week on the Case of the Week and hope that you’ll continue to do so. As always, if you have comments on things that you’d like to see covered, whether it’s an issue or a specific decision, please just drop me a line and let me know. If you’d like to receive our Case of the Week newsletter delivered directly to your inbox, feel free to jump to ediscoveryassistant.com/blog and sign up.
If you have not signed up yet to receive emails from eDiscovery today, then you need to do that as well. Doug not only covers case law, but all of the happenings in eDiscovery land, and it’s an invaluable way to stay up to speed. I think I was reading it at 5:30 this morning, so thank you, Doug.
All right, that’s a wrap for us. Thank you so much for joining us. Everybody have a great week, and we’ll see you next week.
Doug: Bye, everybody.
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. 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. Have a great week.