As with past years, eDiscovery was a hot topic in case law. Spanning from Rule 45 to cost shifting and more, the courts tackled several eDiscovery obstacles. With each decision, legal practitioners glean more insight into how courts will handle these issues in future cases and tips for polishing their eDiscovery practices.

Key trends include:

• Courts are continuing to address when cost shifting is appropriate and how much to award
• Courts are demanding parties have appropriate evidence when making or defending a proportionality claim
• The courts are still clarifying how TAR can be applied
• Courts are continuing to clarify what is protected by privacy rights and what is deemed discoverable under new and ever-changing privacy laws

Below are five of the top eDiscovery cases from 2020:

Lawson v. Spirit AeroSystems, 2020 WL 3288058 (D. Kan. June 18, 2020)

A central issue was whether cost shifting under FRCP 26(c)(1)(B) was appropriate. The dispute in Lawson centered on alleged violation of a non-compete agreement. Although not the norm, the plaintiff was given approval by the court to define the search terms and custodians for the defendant as long as these searches were targeted with high responsive rates. After requesting a multitude of ESI related to the non-compete and having little success with traditional eDiscovery methods, plaintiff wanted defendant to use TAR methods. Defendant objected, arguing that it would not be fruitful and would add unnecessary expense. The court allowed this but warned it might shift costs, which it did after defendant filed a motion seeking that relief.

While cost-shifting decisions are rare in this area, since the party responding to a discovery request generally bears the expense, the Lawson court deemed it appropriate. Plaintiff failed to narrow the initial searches and pushed for a TAR review, knowing it would raise expenses and likely not yield anything significantly valuable. Because of this, the court held that the ESI/TAR process became disproportionate to the needs of the case.

A major takeaway is that even though cost shifting is not common, it can still occur when the proportionality factors weigh in favor of the responding party – like making repeated attempts with low results and failure to narrow discovery requests. While it is unconventional for a court to let a party dictate the eDiscovery process, the judge in Lawson granted over $750,000 in costs, which was then upheld by the District Court. Another key point for litigators to remember is that courts can be unpredictable, especially when discretion is involved. Future courts may take this decision as caution of potential downfalls when allowing requesting parties to dictate eDiscovery processes.

Livingston v. City of Chicago, No. 16-cv-10156 (N.D. Ill. Sep 3, 2020)

A main issue of this case was when is pre-culling data sets proper? The Livingston case had several discrimination claims concerning how a fire department treated women during their application process. Many emails were at issue, and the parties disagreed about appropriate eDiscovery methods. Plaintiff wanted more sophisticated methods for the initial data set and the court agreed, ordering defendant to use a vendor. The court let plaintiff offer search terms but left responsiveness determination to defendant. After pre-culling the data set with these terms, defendant wanted to use TAR for their relevance search. Plaintiff disagreed and argued that defendant was restricted to using their search terms and needed to produce all relevant and non-privileged documents from that initial search or follow their protocol.

The court held again that responsiveness review was up to defendant and plaintiff could not dictate the TAR process. The decision signals to litigators that pre-culling data sets before using TAR is an accepted practice that can significantly cut down eDiscovery costs while still maintaining the integrity of the responsive data set. However, this does not mean that the requesting party’s search terms used to pre-cull data will carry into each phase of review. Consequently, a key takeaway is that most courts follow the principle that the party bearing TAR costs should be the one developing protocols which sets limits on what requesting parties can do. Further, it takes a more practical approach, unlike the outlier case Lawson where the court allowed plaintiff dictate the eDiscovery process.

Oppenheimer v. Episcopal Communicators, Inc., (W.D. N.C. August 14, 2020)

The issue in this case was what does a party need to proffer when making a proportionality argument to limit discovery responses. In Oppenheimer, plaintiff claimed that defendant published one of his copyrighted photos on their website. Defendant made several requests for production seeking documents relevant to the claim, like prior copyright assertions and licensing agreements. Plaintiff did not fully reply and merely cited boilerplate objections with no supporting evidence, a main one being proportionality. After three months of non-compliance with the requests and attempting to address the issues outside of court intervention, defendant filed a motion to compel.

The court granted defendant’s motion to compel because plaintiff failed to produce enough evidence showing that the production requests were disproportionate or irrelevant to the needs of the case. Even with the limited responses made, the court had nothing to work with to assess proportionality. For example, plaintiff responded that he previously made two other copyright assertions, but included nothing about the amounts recovered or revenue from additional photos.

The major takeaway from this case is that courts will not waste their time with entertaining boilerplate objections. Without evidence and explanation to substantiate why something is irrelevant or disproportionate, the court has no basis to disallow certain eDiscovery requests. Best practices include crafting reasonable and supported objections while working with opposing counsel to determine what is proportional, as an effort to avoid court intervention. Taking these steps will help manage eDiscovery costs, streamline cases, and ensure that requests remain relevant and proportionate.

Rich v. Butowsky et al., No. 18-cv-00681-RJL (D.D.C. Oct 6, 2020)

A central issue in this case was when is it appropriate to grant motions to quash Rule 45 subpoenas served on non-parties asserting First Amendment protections? This defamation lawsuit arises from the well-known Wikileaks incident concerning the 2016 presidential election. Plaintiff’s brother, a former DNC staffer, was murdered and the media put out stories that he provided stolen DNC emails to Wikileaks – the biggest story coming from Fox News. As a result, plaintiff filed this lawsuit claiming that defendants made baseless false statements about the unsolved murder that promoted conspiracy theories connecting his brother to these leaks and about plaintiff assisting his brother with unauthorized access and leaking of confidential documents.

There was an allegedly fraudulent FBI report defendants used for their story, but no confirmation about who was the source. Through discovery, plaintiff determined that an anonymous Twitter user potentially leaked the report and presented evidence to support this contention. Plaintiff served a subpoena on Twitter, a non-party, seeking user and account information for the anonymous user. Twitter filed a motion to quash the subpoena, citing the anonymous user’s First Amendment rights.

Rule 45 authorizes quashing subpoenas when there is privileged information or it subjects someone to undue burden. First Amendment rights for anonymous speech do exist in this context. However, this does not provide unlimited protections and will be fact dependent. The Rich court denied Twitter’s motion after analyzing a variety of factors weighing in favor of disclosure. A few vital factors included:

• The subpoena excluded the user’s personal communications and the evidence could support a truth defense, which establishes good faith.
• The user’s information was directly and materially relevant because it would inform whether defendants had a requisite state of mind when making the statements at issue.
• There is only one way to get this vital information, which is directly from Twitter.
• A protective order would be in place providing additional safeguards over the user’s anonymity rights.

Major takeaways from this case are that decisions for quashing Rule 45 subpoenas will rely heavily on the case facts, even when protected speech and non-parties are involved. This puts litigators on notice that having sufficient evidence to support subpoenas is crucial, otherwise it could be quashed. The case also provides a general reminder that anonymous speech online will not always be protected.

Rodriguez-Ruiz v. Microsoft Operations Puerto Rico, (D. P.R. March 5, 2020)

A main issue was whether social media posts invoke privacy rights. Rodriguez was a wrongful termination and ADA violation case where defendant asked for plaintiff’s Facebook posts during discovery. The requests specifically asked for profile activity related to mental status, messages, and photos. Plaintiff objected, claiming that the social media activity was unrelated to the case and violated his right to privacy. Defendant filed a motion to compel, which the court granted with limitations.

The court relied on previous case law concluding private social media accounts are not protected by privacy rights and are therefore discoverable if related to claims in a case. In Rodriguez, plaintiff claimed emotional distress and defendant argued that social media posts could confirm if the distress resulted from causes unrelated to workplace happenings and his ultimate termination. While the court agreed, it reminded that just because evidence is contained electronically, a party should not have an unrestricted right to the whole file. It limited disclosure of plaintiff’s private posts and photos only to those relating to mental status, as determined by plaintiff’s counsel.

There are two major takeaways from this case. First, the fact that privacy is a hot topic right now does not mean that parties can use it as a blanket objection when electronic data relates to central issues in a case. This is true even when social media activity is generally restricted from the public eye. However, the second is that this does not give the requesting party a sweeping right to look at all of a person’s online activity. There will still be restrictions in place proportionate to the case needs, thus still protecting irrelevant data that can remain private.

These cases set the scene for 2021 case law, where we will likely see more of the same and some carved out exceptions on the topics above. Observers and practitioners should anticipate more Rule 45 case law, as the Sedona Conference recently published their updated commentary on avoiding undue burden on non-parties possessing ESI potentially relevant to a case. However, as the Rich case illustrates, this will not mean that non-parties get a free pass to avoiding subpoenas. Also, look for any new decisions stemming from increased remote work, likely centering on topics like collaborative tools and chat data spoliation.

To learn more about issues collecting and reviewing chat messages see our article here discussing Microsoft Teams and compliance.

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