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The Sedona Conference recently held its annual meeting for Working Group 1 (electronic document retention and production) to discuss key issues relating to electronic discovery practice. The event covered any number of topics, including issues relating to the negotiation of ESI protocols, best practices for non-waiver orders under Federal Rule of Evidence 502(d), privilege logging, and ephemeral messaging. The sessions generated robust discussion between the dialogue leaders and the attendees, including the various judges in attendance.

One of the most significant items of discussion included case law developments affecting counsel, clients, and the courts. Among the noteworthy cases mentioned was the order that U.S. Magistrate Judge Mitchell D. Dembin issued in NuVasive, Inc. v. Alphatec Holdings, Inc. out of the Southern District of California. The NuVasive decision spotlights the importance of following the guidance The Sedona Principles have delineated for addressing electronic discovery.

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NuVasive, Inc. v. Alphatec Holdings, Inc.

NuVasive involved a search term and custodian dispute in the context of patent infringement claims. The parties had a "general agreement" to abide by the Model Order Governing Discovery of Electronically Stored Information in Patent Cases, a set of electronic discovery guidelines that the Federal Circuit Advisory Council promulgated over eight years ago. The provisions in the Model Order addressing email discovery, which limit a requesting party to five custodians (which it must identify) and five search terms, gave rise to the parties' discovery dispute. In reliance on the Model Order, plaintiff moved to compel defendants to use the search terms it designed. Plaintiff also sought to determine the appropriateness of the custodians that it identified.

The court rejected plaintiff's motion, finding its reliance on the Model Order was misplaced given the Order's systemic deficiencies regarding email discovery. As an initial matter, the court determined that the Model Order's disclosure and limitation mandates relating to custodians and search terms to be inconsistent with the strictures of Federal Rule of Civil Procedure 34, which do not require "a requesting party to identify custodians or search terms."

In addition, the court observed that the Model Order contravened e-discovery best practices as memorialized in The Sedona Principles. By coercing requesting parties to unilaterally designate custodians and develop search terms, the court found the Model Order to be inconsistent with Sedona Principle 6, which empowers the responding party to handle the production of its information, and Sedona Principle 3, which encourages parties "to reach agreement regarding production of electronically stored information."

In closing its order, the court criticized the Model Order for its exclusive reliance on search terms as the approach for addressing email discovery. While observing that "search terms have their place," the court explained that "electronic discovery has moved well beyond search terms" and that the Model Order's exclusive reliance on this one search methodology made it "obsolete."

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Other Key Cases

While the time would fail to review every key decision discussed in the Sedona case law segments, two other cases worth reviewing include Herzig v. Arkansas Foundation for Medical Care, Inc. (W.D. Ark.) and Bellamy v. Wal-Mart Stores, Texas, LLC (W.D. Tex.).

In Herzig, the court held that plaintiffs improperly used Signal, an ephemeral messaging application, to prevent relevant communications from being disclosed to defendant. Plaintiffs had been ordered early in discovery to produce relevant text messages after they initially refused to divulge those communications to defendant. After reluctantly complying with the court's production order, plaintiffs began using the Signal app to communicate with each other, "manually configuring" the application to automate the destruction of their respective messages "after a short period of time." Plaintiffs' use of Signal was not discovered until near the close of discovery, at which time the court concluded plaintiffs used the app nefariously to conceal the existence of relevant communications. While plaintiffs' malfeasance likely merited severe sanctions, the court found it unnecessary to do so as it simultaneously granted defendant's motion for summary judgment and dismissed their case.

The Bellamy case involved a defendant that mistakenly produced a file of attorney-client privileged documents to plaintiff. As the parties neglected to obtain a non-waiver order pursuant to Federal Rule of Evidence 502(d), the court analyzed the question of waiver under Federal Rule of Evidence 502(b). Under Rule 502(b), defendant established that its production of privileged documents was legally inadvertent and thus there was no waiver of the privilege.

That, however, did not end the court's inquiry. The contents of the privileged documents apparently revealed several key points including (among other things) that defendant failed to identify in its initial disclosures the existence of key witnesses, failed to produce crucial evidence in response to plaintiff's discovery requests, failed to preserve relevant video footage, and neglected to disclose any of the foregoing to plaintiff. In response, the court imposed monetary sanctions against defendant and also issued a curative measure under FRCP 37(e)(1) that was, in effect, a preclusion sanction as it would prevent defendant from asserting that plaintiff was contributorily negligent in connection with her slip and fall at defendant's store.

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Conclusion

The above referenced cases exemplify various practice points including the role of cooperative advocacy in discovery, the need for prudence in using ephemeral messaging apps during anticipated or ongoing litigation, and the importance of Rule 502(d) non-waiver orders. They also underscore the need to stay current on electronic discovery case law and the continued viability of The Sedona Conference and its role in developing authoritative resources on electronic discovery for judges, lawyers, and litigants.

Philip Favro is a consultant for Driven, Inc. where he advises organizations and their counsel on issues relating to the discovery process and information governance. He also serves as a member of The Sedona Conference WG1 Steering Committee.