BuzzFeed website

In a media climate engrossed with the phrase “fake news,” it was only a matter of time before someone filed suit about it and subsequently was caught up in an e-discovery controversy.

Case and point, Leidig v. Buzzfeed, out of the U.S. District Court for the Southern District of New York.

Nearly two years ago, BuzzFeed was hit with an $11 million lawsuit by a foreign news company (Central European News) and its founder, Michael Leidig, for publishing an article titled, “The King of Bullsh*t News.” This article accused CEN of “fabricating and selling fake news stories.” Leidig did not take too kindly to this accusation and filed suit for defamation.

What ensued was a series of events, showcasing how the simple act of accessing relevant data can lead to a nightmare of conferences, motions and just not a lot of progress based on gamesmanship or just maybe incompetence. Only the parties in this case will really know the answer to that one.

Multiple Discovery Fights

When discovery commenced, BuzzFeed saw deficiencies in CEN's response to their document production request. BuzzFeed claimed that CEN produced “documents bearing no metadata, including [but not limited to] manually manipulated PDFs, summaries of underlying documents not produced.” Not satisfied with this result, Buzzfeed asked the court to help mediate this production dispute, and the court ordered CEN to produce the original versions of documents along with corresponding metadata.

Buzzfeed claimed that the subsequent document production did not comply with the court's instructions. As a result, the court held another conference, ordering CEN to produce a Rule 30(6)(b) witness to answer questions about the “efforts to collect documents and metadata.”

An Interesting Deposition

Interestingly enough, CEN chose its founder, Leidig, to answer these technical e-discovery questions. Not surprisingly, Leidig was unable to answer a number of questions about the collection process, but did state:

  • “No special effort was made to preserve document concerning the Buzzfeed piece.”
  • Plaintiff “was instructed by counsel to preserve evidence only after the lawsuit was filed.”
  • Metadata was inadvertently modified and deleted when the plaintiff attempted to manually move files to a production repository.

After these revelations in Leidig's deposition, BuzzFeed filed a motion for spoliation sanctions for: (1) not adequately preparing their Rule 30(b)(6) witness, and (2) CEN's spoliation of relevant evidence.

The Court's Ruling

Under FRCP Rule 30(b)(6), a party who presents a witness must make a good-faith effort to prepare the witness to “answer fully, completely, [and] unevasively the questions posed … as to the relevant subject matters.”

Ruling: While a close call, the court ruled that the 5.5 hour deposition was “lacking in desired specificity in discrete areas,” but not egregious enough to warrant sanctions, since the witness had “substantial information” in a couple of key topics. As an alternative, the court would allow Buzzfeed to require CEN to produce a different witness that can adequately answer the questions Leidig didn't know.

Under FRCP Rule 37(e), the new electronically stored information spoliation standard, a party can be sanctioned if they failed to take “reasonable steps” to preserve the data in question and that data cannot be “restored or replaced” with additional discovery.

Ruling: While it cannot be proved that CEN acted with an intent to deprive, its actions were “certainly negligent” (i.e., no legal hold issued until after complaint filed, no “reasonable steps” to preserve were taken) and BuzzFeed was prejudiced by the deletion/modification of metadata and an important email between key custodians. As a remedy, BuzzFeed was allowed to present evidence that CEN failed to preserve relevant data and CEN would be precluded from using the date in any document to prove the date in which the document was created due to the metadata modifications.

Key Takeaways

What did hiding the ball and not communicating/negotiating with BuzzFeed get CEN? Nothing.

This seems to be a common occurrence in e-discovery negotiations. One side is mad and is in no mood to cooperate, which makes sense you're angry enough to file a lawsuit, you're in no mood to cooperate or help the other side. But this directly contradicts what corporate clients want. They want their outside lawyers to effectively manage risk and not cooperating in e-discovery isn't going to give your client the emotional satisfaction they are looking for. It may be winning a small battle but in the end you're doing things that may lose you the war.

Take some advice from the people making these decisions on who gets sanctioned and what acceptable e-discovery practices are: the judges. In a recent judges report, 30 active federal judges said the problem with e-discovery for most attorneys isn't process or technology, it's an overly adversarial mindset. When asked how attorneys could best improve e-discovery practices, the No. 1 response given was “cooperating with opposing counsel.” Recently retired U.S. Magistrate Judge David Waxse of the District of Kansas reinforced the messages in the FRCP committee notes that, “effective advocacy is consistent with—and indeed depends upon—cooperative and proportional use of procedure.”

Maybe attorneys need to think back to “The Godfather” and remember the iconic line, “Nothing personal, it's just business.” For attorneys, they can save their client a lot of time and money by taking that line to heart. But maybe instead the phrase should be, “Nothing personal, it's just e-discovery.”

 

Mike Hamilton is the director of e-discovery programs at Exterro and has been involved in e-discovery for over seven years. With a legal and business background, Hamilton is experienced and passionate about creating thoughtful, out-of-the-box educational resources that help keep legal teams interested and on top of emerging need-to-know e-discovery issues. He frequently writes and speaks on e-discovery issues and best practices around the country.