2018 E-Discovery Year in Review Synopses of Significant Decisions Touching on Issues Related to the Practice of Electronic Discovery

2018 E-Discovery Year in Review Synopses of Significant Decisions Touching on Issues Related to the Practice of Electronic Discovery Editors John J. Rosenthal Christopher C. Costello Matthew W. Poplawski Jason D. Moore © 2019 Winston & Strawn LLP Table of Contents 1 Introduction 2 Scope of Discovery/Proportionality 12 Preservation, Spoliation, and Sanctions 27 Search and Retrieval 35 Rule 34 37 Meet and Confer/Cooperation 38 Cross-Border Issues 43 Privilege & Waiver 47 Rule 26(A) Disclosures 49 Possession, Custody, or Control 51 Stored Communications Act 53 eDiscovery and Information Governance Practice 54 Index © 2019 Winston & Strawn LLP 2018 E-Discovery Year in Review Introduction Winston & Strawn LLP’s eDiscovery & Information in the European Union in May 2018, with its increased Governance Group (the “eDiscovery Group”) is pleased administrative fines, recordkeeping requirements, and to present the following update on important electronic focus on conducting privacy assessments and utilizing discovery decisions issued over the course of the past year. appropriate security measures has forced companies to reevaluate their procedures for handling personal In 2018, courts and litigants continued to grapple with data. Existing challenges to the use of standard how to apply the 2015 Amendments to the Federal Rules, contractual clauses, the EU-U.S. Privacy Shield, and including how the renewed focus on proportionality decisions concerning the territorial scope of the Stored impacts discovery in civil cases and how best to Communications Act have garnered significant attention, encourage parties to comply with the changes to Rule 34. and led to the implementation of the CLOUD Act. In addition, certain states, including California, have The year also saw a number of cases addressing whether undertaken efforts to strengthen protections for individual and how to validate production results given the increased privacy, and we expect those efforts to continue. focus on the use of predictive coding technologies and other analytical tools to address the review and production For the upcoming year, we see continued focus on the of the ever-growing volume of electronically stored use of advanced technologies for review and production, information. In some instances, these validation protocols the growth of discovery of the Internet of Things, and have been applied beyond the context of predictive the increasing importance of conducting both case and coding to include search terms and even general data assessments at a much earlier stage in the litigation validation of traditional linear review productions. Some of lifecycle than has previously been the case in order to these decisions required the producing party to validate its better predict/control costs and prepare for Rule 26(f) search methodology and/or results in the absence of any meet and confers. asserted deficiency in production. These decisions ignore, or attempt to sidestep, the well-established principle under The following summaries of select cases from the past federal and state rules that the producing party is in the year demonstrate the variety of approaches to, among best position to determine what constitutes a reasonable other things, proportionality, the scope of discovery, inquiry and review of its documents and systems, and that Rule 37(e) and other sanctions, Rule 34 objections and absent a showing that such efforts are inadequate, courts responses, production format, cross-border discovery, and opposing parties are not empowered to interject privilege waiver, and the use of predictive coding themselves into the producing party’s internal processes. technology and other search methods. We hope that you find these case summaries both insightful and helpful in Data privacy and data security continued to increase in your practice. importance, both domestically and internationally. The implementation of the General Data Protection Regulation © 2019 Winston & Strawn LLP 2018 E-Discovery Year in Review 1 Return to TOC Return to Index Scope of Discovery/ Proportionality The 2015 Amendments to the Federal Rules of when the case involves only a narrow issue or specific Civil Procedure refocused attention on the role of set of custodians. Parties need to be aware of attempts to proportionality in discovery and noted that in some cases improperly expand the scope of discovery and/or the need discovery of relevant information may not be proportional to educate the court on the specific burden the producing to the needs of the case. Since December 2015, many party faces. courts have sought to apply the proportionality factors to determinations of the appropriate scope of discovery Bell v. Pension Committee of Ath Holding Co., LLC, Case in the particular case at issue. Under Amended Rule No. 1-15-cv-02062-TWP-MPB (S.D. Ind. June 14, 2018). 26(b)(1), the scope of discovery is limited to documents Magistrate Judge Matthew P. Brookman was asked to and information that are both relevant to the claims and compel one of the plaintiffs to produce certain Facebook defenses in the specific matter and proportional to the messages she exchanged with another plaintiff and a needs of the case. The responsibility to ensure that Facebook post relating to attorney advertising targeting discovery is proportional to the needs of the case is on members of the underlying pension plan. In opposing the all parties and the court. However, in recent practice, motion, the plaintiffs argued that the Facebook messages much of the effort to establish that certain discovery is constituted “instant messages” that were exempted from disproportionate falls on the responding party or the discovery by the parties’ stipulated ESI Order. judge, as requesting parties too often shoot for the moon. While in some cases the court can determine that specific Although he reviewed the cases submitted by both sides requests are facially disproportionate, in other instances, concerning whether Facebook messages are more like the court looks to the producing party to demonstrate with e-mails, which the parties had agreed to produce, or specificity why specific requests are not proportional to instant messages, which they had not, Judge Brookman the needs to the case. In these situations, most responding held that he did not need to make such a determination parties (including third parties) attempt to argue undue because the ESI Order did not prevent either party from burden and/or cost. In such cases, the producing party “subsequently requesting that ESI identified [in the Order] needs to offer more than just boilerplate objections, and be preserved and produced if specific facts demonstrate a instead provide actual costs and/or realistic estimates. The particular need for such evidence that justifies the burden need to comply with specific data privacy requirements, of preservation and retrieval.” whether domestic or international, can also affect the proportionality analysis. In addition, there are certain In granting the motion to compel production of the types of discovery that are generally not proportional Facebook messages, Judge Brookman noted that without a showing of a deficiency in the producing the plaintiff’s testimony established the messages’ party’s production, such as: (1) discovery-on-discovery; relevance to the parties’ claims and defenses, and that (2) unfettered direct access to the responding party’s the plaintiff had not presented any evidence that it would ESI; and (3) requests for searches all company databases be burdensome for the messages to be collected and © 2019 Winston & Strawn LLP 2018 E-Discovery Year in Review 2 Return to TOC Return to Index produced. However, Judge Brookman denied the motion Hornak found that even an 8.3 percent responsiveness to compel the production of the Facebook post. He noted rate did not make the burden of reviewing the e-mails that an attorney inquiry that the plaintiff had read in a local disproportionate to the utility of the information, noting that paper, without a more detailed explanation as to why it the parties had already anticipated that “this was going was important, was not relevant, and thus did not need to to be a big case,” and that “part and parcel of that reality be produced. is that in big cases, there will likely be large amounts of potentially discoverable information, which means, for Brewer v. BNSF Railway Co., No. 16-14-65-GF-BMM- better or worse, a lot of work in identifying and producing JTJ, 2018 WL 882812 (D. Mont. Feb. 14, 2018). Judge it.” Accordingly, Judge Hornak ordered the defendant to Brian Morris reviewed the magistrate judge’s findings review the 363,000 emails and denied the defendant’s and recommendations, which denied, among other request to shift the cost of that review to the plaintiff. requests, the plaintiff’s motion to obtain discovery on the defendant’s capability to search for, preserve, and produce Delgado v. Tarabochia, No. C17-1822RSL, 2018 WL ESI. The plaintiff argued that such discovery-on-discovery 2088207 (W.D. Wash. May 4, 2018). Judge Robert S. was within the scope of Rule 26(b)(1), and that the Sedona Lasnik was asked to quash the defendants’ subpoena Conference Principles are not controlling authority. seeking the plaintiff’s phone records, call and text message logs, as well as roaming data. After noting that Judge Morris disagreed with the defendant and upheld discovery under Rule 26(b)(1) extends to nonprivileged the denial. The court stated that the plaintiff’s request still material that is

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