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.

The court rejected the plaintiff's objection, again not by discussing esoteric facts pertaining to computer searches and artificial intelligence, but by applying long-accepted discovery legal standards to the facts of the matter. It noted that it was the plaintiff's burden to “show the discovery requests” were “improper,” that the plaintiff did not meet that burden, and that the plaintiff grossly overstated the burden of creating a privilege log.

The court also rejected many of the plaintiff's objections to the defendants' discovery requests on another traditional basis having nothing to do with cyber evidence: she waived objections because “she did not assert” them “in her responses” to the “defendants' interrogatories and requests.” The court noted that under Federal Rules of Evidence 33(b) and 34(b), objections “to discovery requests must be made in the response to the request. Those not made in the response are waived.” The defendants had requested “any and all text messages, emails and social medial posts regarding” the implanted filter in question, filters in general, the defendants, or the plaintiff's medical condition, recovery or damages. The plaintiff objected to the request solely on the ground that it sought “communications between the plaintiff and her attorney.”

Thus, the court found, “her briefed argument” that the request was “vague, overly broad, and exceeds the scope of discovery” was waived. The plaintiff was ordered to produce the requested discovery; anything Plaintiff believed was protected by privilege had to be identified in a privilege log to be produced to the defendants.

The court's “traditional” approach benefited the plaintiff with regard to at least one issue. The defendants sought “any communication between the plaintiff or anyone acting on her behalf (including her attorney) to any third party.” The plaintiff provided a partial response with no objections, the absence of which would typically lead to waiver of such objection. The court, however, used its discretion to afford the plaintiff time to determine the production of which, if any, of these communications she would object on the basis of privilege. The court reasoned that “many of the described communications [were] likely to be privileged because the request expressly included all of the plaintiff's attorney's communications on her behalf,” and that the defendants suffered no prejudice because the defendants could not “be surprised by potential privilege claims due to this express inclusion.” Since “waiver would be unjust” to the plaintiff, while the court's ruling would not prejudice the defendants, the court allowed the plaintiff 14 days to produce the “nonprivileged requested materials” as well as a privilege log for those documents withheld as privileged.

Even where the court had to address issues involving e-discovery digital esoterica, it did so using traditional discovery reasoning and explanations, demystifying e-discovery and ensuring that all parties were treated fairly. The court's analysis of the defendants' request for an order requiring the plaintiff to produce responses in native file format illustrates its common-sense approach.

The plaintiff had produced some of the social media data the defendants requested in PDF format, while the defendants were requesting it in native file format. Users familiar with PDFs know that their text in PDF format cannot be changed in a way that, for example, the same file, in Word format, could (which is often why producers of e-files will send files in PDF and not, for example, in Word, Excel or other native formats). The plaintiff's response to the defendants' request was that the “nature of the native file format” invaded her privacy.

The court noted that while Rule 34(b)(1)(C) provided that parties could specify the format in which ESI was produced, and the comments to the 2006 amendment emphasized the importance of providing ESI in the requested format to avoid data processing issues, under Rule 34(b)(2)(D), the responding party could object to the requested format. The issue court saw here was that here, native format was “too intrusive.” The parties agreed that native files, unlike PDFs, contained “considerably more information—namely metadata,” which provided “much more private information.” Metadata in native files, the court observed, provided “the who, what, when, where and how of the making of a post.”

To avoid intrusiveness, the court limited the defendants' access within native files. The court found that while the defendants did not make “a sufficient showing for the metadata in all posts,” they still could “request a native file for specific posts.” For the request to be honored, the defendants had to show “the posts' relevance.” By way of example, the court imaged a post which stated that on a certain date, the plaintiff traveled to a certain location, and where the metadata was supplied. Under those circumstances, metadata revealing on what day and at what time the message was posted to social media would be relevant and not too intrusive. As well, had a plaintiff's expert expressly relied on the metadata associated with a post, it would by means be too intrusive for the defendants to be ordered to produce that post's metadata. Once again, the court found clarity not in delving deeply into the ones and zeroes of the ESI at issue, but in explaining how the data sought could be relevant to traditional evidentiary issues.

As for the scope of the defendants' social media requests, the court once again struck the same balance, not allowing “broad access to private information,” but requiring that the plaintiff produce “publicly available information … limited by time and content.” The court noted that, as it pertained to “a party's public social media profiles,” no privacy rights were involved: “the very nature of social media limits parties' privacy expectations.” Thus, the court had no problem granting “defendants' motion to the extent the discovery requests” sought the “plaintiff's publicly available social media.” Inasmuch, however, as “the public information is equally accessible to both parties,” the court held that the “plaintiff need not foot the expense (and effort) of providing to the … defendants what they can find in an internet search.”

Turning to the defendants request for the plaintiff's social media “user names, handles, login names or IDs and email addresses applicable to the login or use of the website,” the court again relied simply on common sense. The court noted that the defendants' discovery requests did not include one for the plaintiff's Facebook password and the briefing suggested that the defendants already possessed the plaintiff's social media usernames. Thus, while much “of the parties' briefing on this interrogatory” concerned the defendants' request for the “plaintiff's Facebook password,” because that request arose only in the defendants' brief,” i.e., “defendants did not request” the password in discovery, and it is “axiomatic that the court cannot compel a response to an interrogatory that does not exist,” it denied that briefed request.

The court then turned to the defendants' request for the plaintiff's “private social media data.” The court noted that it “may compel private social media data when the seeking party shows it is relevant and proportional to the needs of the case.” The requesting party, however, must limit its request, and the court must limit its order, to the relevant “time period and content” of the data.

The defendants' sought social media data regarding the plaintiff's travel to and from her vacation home in another state, travel of more than two hours away from home, relocation to a new city, hobbies and social activities, as well as the plaintiff's claims against the defendants, the filter at issue, such filters generally, her medical conditions, recovery and alleged damages, and her general condition from deployment of the filter to the present. The plaintiff objected to the scope of the request, arguing that it was overbroad. The defendants argued that they were entitled to the data because the plaintiff was seeking damages including loss of enjoyment of life, depression with increased anxiety, and other continuing medical issues.

The court agreed with the defendants because their request was limited both as to the time period involved, i.e., after implantation of the device, as well as “at particular aspects of alleged injuries—e.g., the ability to travel more than two hours or participate in social engagements,” as opposed to the plaintiff's “overall mental state,” which would be too broad of a request.

By contrast, in their plaintiff fact sheet, the defendants did request “'screenshots of all webpages of each type of social media used by the [plaintiff] … showing any and all 'posts' and/or 'messages' from the date of implantation to the present.'” The court denied this request using the same reasoning it used throughout the opinion: the request was simply too broad. The court noted that, “despite the time limit, the lack of a content limitation dooms this request to the extent it seeks private social media data. If the motion were granted, the plaintiff would have to turn over a screen shot of every private message she sent to anyone on any topic simply because she sent it after the implantation.” To state the request's reasoning was to reject it.

Conclusion

In re Cook Medical goes through a laundry list of claims that are typical of e-discovery matters and disputes. The court does so with a sound understanding not just of the digital realities underlying the claims, but also of what is acceptable under the rules, i.e., what is fair. It is that sense of fairness that most strongly underlies the opinion, and that is refreshing. Too many e-discovery opinions get lost because their authors see the technical issues as so much from another world that the court cannot figure out how the technology fits within the simple and well-understood sense of fairness that the Federal Rules voice and that has always informed judicial thinking. Judges stepping into, or even immersed in, the e-discovery world should read In re Cook Medical not simply for its holdings but, more importantly, its reasoning and temperament.
Leonard Deutchman is vice president, legal for KrolLDiscovery, which he helped build into the largest e-discovery provider in the United States, with offices across the country and around the world. Before joining KrolLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses.

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.

The court rejected the plaintiff's objection, again not by discussing esoteric facts pertaining to computer searches and artificial intelligence, but by applying long-accepted discovery legal standards to the facts of the matter. It noted that it was the plaintiff's burden to “show the discovery requests” were “improper,” that the plaintiff did not meet that burden, and that the plaintiff grossly overstated the burden of creating a privilege log.

The court also rejected many of the plaintiff's objections to the defendants' discovery requests on another traditional basis having nothing to do with cyber evidence: she waived objections because “she did not assert” them “in her responses” to the “defendants' interrogatories and requests.” The court noted that under Federal Rules of Evidence 33(b) and 34(b), objections “to discovery requests must be made in the response to the request. Those not made in the response are waived.” The defendants had requested “any and all text messages, emails and social medial posts regarding” the implanted filter in question, filters in general, the defendants, or the plaintiff's medical condition, recovery or damages. The plaintiff objected to the request solely on the ground that it sought “communications between the plaintiff and her attorney.”

Thus, the court found, “her briefed argument” that the request was “vague, overly broad, and exceeds the scope of discovery” was waived. The plaintiff was ordered to produce the requested discovery; anything Plaintiff believed was protected by privilege had to be identified in a privilege log to be produced to the defendants.

The court's “traditional” approach benefited the plaintiff with regard to at least one issue. The defendants sought “any communication between the plaintiff or anyone acting on her behalf (including her attorney) to any third party.” The plaintiff provided a partial response with no objections, the absence of which would typically lead to waiver of such objection. The court, however, used its discretion to afford the plaintiff time to determine the production of which, if any, of these communications she would object on the basis of privilege. The court reasoned that “many of the described communications [were] likely to be privileged because the request expressly included all of the plaintiff's attorney's communications on her behalf,” and that the defendants suffered no prejudice because the defendants could not “be surprised by potential privilege claims due to this express inclusion.” Since “waiver would be unjust” to the plaintiff, while the court's ruling would not prejudice the defendants, the court allowed the plaintiff 14 days to produce the “nonprivileged requested materials” as well as a privilege log for those documents withheld as privileged.

Even where the court had to address issues involving e-discovery digital esoterica, it did so using traditional discovery reasoning and explanations, demystifying e-discovery and ensuring that all parties were treated fairly. The court's analysis of the defendants' request for an order requiring the plaintiff to produce responses in native file format illustrates its common-sense approach.

The plaintiff had produced some of the social media data the defendants requested in PDF format, while the defendants were requesting it in native file format. Users familiar with PDFs know that their text in PDF format cannot be changed in a way that, for example, the same file, in Word format, could (which is often why producers of e-files will send files in PDF and not, for example, in Word, Excel or other native formats). The plaintiff's response to the defendants' request was that the “nature of the native file format” invaded her privacy.

The court noted that while Rule 34(b)(1)(C) provided that parties could specify the format in which ESI was produced, and the comments to the 2006 amendment emphasized the importance of providing ESI in the requested format to avoid data processing issues, under Rule 34(b)(2)(D), the responding party could object to the requested format. The issue court saw here was that here, native format was “too intrusive.” The parties agreed that native files, unlike PDFs, contained “considerably more information—namely metadata,” which provided “much more private information.” Metadata in native files, the court observed, provided “the who, what, when, where and how of the making of a post.”

To avoid intrusiveness, the court limited the defendants' access within native files. The court found that while the defendants did not make “a sufficient showing for the metadata in all posts,” they still could “request a native file for specific posts.” For the request to be honored, the defendants had to show “the posts' relevance.” By way of example, the court imaged a post which stated that on a certain date, the plaintiff traveled to a certain location, and where the metadata was supplied. Under those circumstances, metadata revealing on what day and at what time the message was posted to social media would be relevant and not too intrusive. As well, had a plaintiff's expert expressly relied on the metadata associated with a post, it would by means be too intrusive for the defendants to be ordered to produce that post's metadata. Once again, the court found clarity not in delving deeply into the ones and zeroes of the ESI at issue, but in explaining how the data sought could be relevant to traditional evidentiary issues.

As for the scope of the defendants' social media requests, the court once again struck the same balance, not allowing “broad access to private information,” but requiring that the plaintiff produce “publicly available information … limited by time and content.” The court noted that, as it pertained to “a party's public social media profiles,” no privacy rights were involved: “the very nature of social media limits parties' privacy expectations.” Thus, the court had no problem granting “defendants' motion to the extent the discovery requests” sought the “plaintiff's publicly available social media.” Inasmuch, however, as “the public information is equally accessible to both parties,” the court held that the “plaintiff need not foot the expense (and effort) of providing to the … defendants what they can find in an internet search.”

Turning to the defendants request for the plaintiff's social media “user names, handles, login names or IDs and email addresses applicable to the login or use of the website,” the court again relied simply on common sense. The court noted that the defendants' discovery requests did not include one for the plaintiff's Facebook password and the briefing suggested that the defendants already possessed the plaintiff's social media usernames. Thus, while much “of the parties' briefing on this interrogatory” concerned the defendants' request for the “plaintiff's Facebook password,” because that request arose only in the defendants' brief,” i.e., “defendants did not request” the password in discovery, and it is “axiomatic that the court cannot compel a response to an interrogatory that does not exist,” it denied that briefed request.

The court then turned to the defendants' request for the plaintiff's “private social media data.” The court noted that it “may compel private social media data when the seeking party shows it is relevant and proportional to the needs of the case.” The requesting party, however, must limit its request, and the court must limit its order, to the relevant “time period and content” of the data.

The defendants' sought social media data regarding the plaintiff's travel to and from her vacation home in another state, travel of more than two hours away from home, relocation to a new city, hobbies and social activities, as well as the plaintiff's claims against the defendants, the filter at issue, such filters generally, her medical conditions, recovery and alleged damages, and her general condition from deployment of the filter to the present. The plaintiff objected to the scope of the request, arguing that it was overbroad. The defendants argued that they were entitled to the data because the plaintiff was seeking damages including loss of enjoyment of life, depression with increased anxiety, and other continuing medical issues.

The court agreed with the defendants because their request was limited both as to the time period involved, i.e., after implantation of the device, as well as “at particular aspects of alleged injuries—e.g., the ability to travel more than two hours or participate in social engagements,” as opposed to the plaintiff's “overall mental state,” which would be too broad of a request.

By contrast, in their plaintiff fact sheet, the defendants did request “'screenshots of all webpages of each type of social media used by the [plaintiff] … showing any and all 'posts' and/or 'messages' from the date of implantation to the present.'” The court denied this request using the same reasoning it used throughout the opinion: the request was simply too broad. The court noted that, “despite the time limit, the lack of a content limitation dooms this request to the extent it seeks private social media data. If the motion were granted, the plaintiff would have to turn over a screen shot of every private message she sent to anyone on any topic simply because she sent it after the implantation.” To state the request's reasoning was to reject it.

Conclusion

In re Cook Medical goes through a laundry list of claims that are typical of e-discovery matters and disputes. The court does so with a sound understanding not just of the digital realities underlying the claims, but also of what is acceptable under the rules, i.e., what is fair. It is that sense of fairness that most strongly underlies the opinion, and that is refreshing. Too many e-discovery opinions get lost because their authors see the technical issues as so much from another world that the court cannot figure out how the technology fits within the simple and well-understood sense of fairness that the Federal Rules voice and that has always informed judicial thinking. Judges stepping into, or even immersed in, the e-discovery world should read In re Cook Medical not simply for its holdings but, more importantly, its reasoning and temperament.
Leonard Deutchman is vice president, legal for KrolLDiscovery, which he helped build into the largest e-discovery provider in the United States, with offices across the country and around the world. Before joining KrolLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses.