A recent opinion demonstrates how, when deciding e-discovery matters, common sense may be far more important than a mastery of esoteric knowledge regarding computers.

Introduction

So many opinions regarding e-discovery involve not simply cases where a lot (usually, of money) is at stake, but where the issue involves large and/or complex e-discovery steps, such as gathering, processing and searching terabytes of data or reviewing hundreds of thousands of files. In In re Cook Medical, IVC Filters Marketing Sales Practices & Products Liability Litigation, No. 1:14-ml-2570-RLY_TAB (S.D.Ind. Sept. 15), a lot, indeed, is at stake: it is the first of many multidistrict litigation cases where, as here, the plaintiff has brought a products liability action seeking damages upon claims that an implanted filter has caused include pain and suffering, loss of enjoyment of life, and continuing medical care, including for depression with increased anxiety. What is different, and interesting, about the case is that the e-discovery claims touch, as the magistrate put it, “on a number of issues, including waiver, privilege logs, production of discovery in native file format and discovery of social media posts,” i.e., upon many issues which are not esoteric but, rather, are somewhat typical discovery issues that you do not need to be the genius characters in ”Scorpion” to understand. In this month's article, we will review the strengths and weaknesses in how the court approached those issues.

Not Getting Caught Up in the Digital Esoterica of E-Discovery

What is perhaps most remarkable regarding the first several issues the court confronted was how it simply treated them as being long-discussed discovery issues that happened to involve computers, rather than as impenetrable computer issues that happened to involve discovery. It began by noting a common phenomenon: that with “the first of several bellwether trials” in the MDL “quickly approaching,” the parties found “themselves in a familiar position—fighting over discovery.” The issues included “waiver, privilege logs, production of discovery in native file format, and discovery of social media posts.” The court granted in part the defendants' motion to compel “because the plaintiff's objections and responses” were “deficient in several ways,” but denied “other parts of the motion to compel” because “some of the disputed discovery requests” simply went “too far.” How far is “too far” in the sci-fi world of e-discovery is, of course, an interesting question, but one which did not overwhelm the court.
The defendants sought “a sanction a blanket waiver of objections to their first interrogatories and first requests due to the plaintiff's delayed response and failure to produce a privilege log.” The court found such a waiver was “not warranted,” because waiver “due to delay is generally reserved as a sanction only for unjustified delays,” while in the instant matter, the plaintiff's delay was only 11 days and “was caused in part by a hurricane.” “Such a harsh sanction,” the court found, “would be unjust”—not because digital evidence was involved, but because the circumstances would have delayed delivery of any type of discovery, and the delay was relatively short.
The court also found that the “lack of a privilege log,” standing alone, did not “justify the waiver of all privileges” when the party asserting privilege “made a good faith showing that the requested material” was privileged. Here, because the “defendants' interrogatories and requests plainly encompassed privileged information,” the court held that the relief sought by the defendants was not warranted. Once again, the court saw that whether the discovery that would have been the focus of the privilege log was digital or not made no difference.

The court next turned to the defendants' motion “for an order to compel responses and a privilege log” for two Interrogatories and eight requests, which “cover various topics.” The plaintiff objected on privilege grounds and contended that she did not provide responses or a privilege log for those discovery requests because they were so broad that the plaintiff could not tell what the defendants wanted, thus requiring the plaintiff “to log everything” she had. The heart of the plaintiff's claim was that the defendants “made providing a privilege log impossible by defining 'you' to include the plaintiff, her attorneys and her representatives.” The plaintiff asserted that would “respond fully to the requests,” provided that the defendants narrowed them.