In a year where an unprecedented global pandemic affects every aspect of life, you might expect less eDiscovery case law coming down. Quite the opposite has proven true.

According to eDiscovery case law research site, eDiscovery Assistant (eDA), 2020 has been a banner year. As of mid-November, eDA has published over 2,100 decisions for 2020. This is roughly 15% of all eDiscovery case law in existence.

On a Macro-level, the data shows us some interesting trends in the issues being addressed in these rulings:

1. The number one issue is spoliation.
2. The second leading issue is proportionality.

The trend line shows that proportionality will overtake all other issues sometime in 2021. As we’ve discussed in this space over the last few years, defending against discovery proportionality claims is nothing new to requesting parties.

What is new is that Judges are beginning to treat proportionality as the two-way street that it is.

Let’s take a look at some recent ruling examples.

Lawson v. Spirit Aerosystems, Inc.

No. 18-1100-EFM-ADM (D. Kan. October 29, 2020)

This case, which is in front of Magistrate Judge Angel D. Mitchell in D. Kan., is a cautionary tale to requesting parties everywhere.

In April 2019, the Judge established a search protocol due to the party’s inability to gain consensus during the meet and confer process. The protocol called for both parties to work together on search terms to try and achieve an 85% responsiveness rate for targeted data.

As a sample, the defendant harvested data from 10 custodians and applied the agreed upon list of search terms to the data. The resulting 468,595 documents that hit on one of the search terms were then sampled and manually reviewed by the producing party. The sample of 384 documents were determined to have only a 7.80% responsive rate. Of those, many were technically responsive to the search terms but irrelevant to the claims and defense in this lawsuit.

The defendants agreed to redo the data culling and sample review using a search term list of the plaintiffs choosing. The new keyword list yielded 322,000 documents. Again, a random sampling was selected and reviewed returning a similarly low responsive rate, this time hitting 5%.

In August, the parties began discussing the possibility of using technology assisted review (TAR) on the set of 322,000 documents. Even though the defendants had shown that only 5% of these documents were responsive, the plaintiff still pursued the defense counsel’s use of TAR and asked that it be applied to all 322,000 documents. The defendant ultimately did have a vendor perform TAR and the results were that only 3.3% of the documents were deemed responsive.

In granting the defendant’s request for cost shifting, Judge Mitchell explains, “the ESI/TAR process became disproportionate to the needs of the case” after previously warning the plaintiff that their inability to focus ESI requests would result in the court shifting costs. The plaintiff was ultimately forced to pay the entire bill incurred from the vendor who performed the TAR process as well as the legal fees of defense counsel.

Let this serve as a cautionary tale about the importance of a cohesive eDiscovery strategy early in a case. By conducting a deposition or two, most requests can become much more targeted and effective.

Oppenheimer v. Episcopal Communicators, Inc.

No. 1:19-cv-00282-MR (W.D. N.C. August 14, 2020)

Not all proportionality claims went against the producing party.

This case demonstrates a more common occurrence. The requesting party found the initial production to be insufficient. This was made clear in a letter sent to the producing party outlining the specific issues with the first production. Additionally, the parties held another meet and confer to attempt to resolve the production issue.

The producing party contended that the requests were “vague, ambiguous, irrelevant to any claim or defense, overbroad, not proportionate to the needs of the case and overly burdensome.”

After four months of failed efforts, the requesting party filed a motion to compel production. The motion was granted because the producing party offered little evidence to support its claim that the production requests were disproportionate, privileged or protected. The producing party never gave specific reasons or evidence to support their boilerplate claim of proportionality.

These first two examples show how important cooperation is when trying to identify proportional eDiscovery parameters. We can’t control the attitudes or actions of opposing counsel, but we can predict them. For plaintiffs, defending a claim of proportionality should be expected when drafting each request for ESI production.

Corker v. Costco Wholesale

No. C19-0290RSL (W.D. Washington, Seattle. April 27, 2020)

The right to receive and review documents in their native format when necessary is an important one for receiving parties. That right was upheld in Corker v. Costco Wholesale.

At issue in Corker, the producing party declined to produce a relevant Excel spreadsheet in its native format. They argued that it would produce irrelevant and “commercially-sensitive information” to litigation advisories who were industry competitors. The producing party had first produced “summary documents” in lieu of the actual spreadsheet. When the requesting party demanded the actual document, they were given a 2,269-page PDF that was heavily redacted and missing the usable metadata that accompanies native files.

The Corker court ruled in favor of the requesting party, rejected the PDF production and ordered the producing party to produce the relevant spreadsheet in native format. The court also ruled that although in theory a relevancy redaction to protect commercially sensitive information is a useful remedy in certain situations, in this case, the producing party had failed to demonstrate why it was entitled to excise such information on the grounds of relevance. The entire document in question was ordered produced with a designation of Attorney’s Eyes Only.

Rodriguez-Ruiz v. Microsoft Operations

No. 18-1806 (PG) (Puerto Rico, D. P.R. March 5, 2020)

Mobile device and social media data were upheld as relevant sources of data in all types of lawsuits and for both plaintiffs and defendants.

Specifically, in Rodriguez-Ruiz v. Microsoft Operations, the defendant sought the plaintiff’s cell phone data and, specifically, Facebook posts. The plaintiff objected to the request stating that the posts were not related to the wrongful termination at question and amounted to an invasion of privacy, stating his income tax returns and medical records should be enough.

The defendants filed a motion to compel the production of the plaintiff’s Facebook profile. The court found that the plaintiff’s Facebook history was relevant to the case and that “posted or published content in a social networking site, such as a Facebook profile, is devoid of a right to privacy.”

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