As 2023 begins it is time once again to reflect on the most interesting eDiscovery cases from last year. Trends are always evolving in this dynamic space and eDiscovery professionals cannot afford to snooze on this review. What themes were practitioners seeing in the courts? How did that mirror or differ from the focus in years prior? Will these trends carry over into 2023? These are the questions to ponder at the beginning of each new year. Here is what came to light when reviewing key 2022 decisions:

• The effects from the pandemic are still present and courts are cracking down even further on delay tactics, failure to comply with court orders, and lack of party collaboration.

• More courts are issuing harsher sanctions. After the 2015 amendments to the Federal Rules of Civil Procedure, there was a trend of leniency and it was difficult to establish bad faith. Now judges are going back to issuing severe sanctions and making it known that cooperation, proportionality, and informed technology usage are key focuses.

• The remote working culture and increased reliance on technology continues to change the nature of litigation.

• Courts are starting to weigh in more on discovery protocols and specifically banning technology assisted review (TAR) usage in certain situations.

Five cases exemplifying these themes that are important to review before heading to court this year on cases involving similar issues.

Red Wolf Energy Trading, LLC v. BIA Capital Mgmt., LLC, No. 19-10119-MLW (D. Mass. Sept. 8, 2022)

The main issues in this labor and employment case were whether sanctions were warranted for counsel’s delay tactics and how emerging technologies play a role in production. Plaintiff filed suit against a former employee for misappropriating trade secrets. Over the course of several years, plaintiff discovered missing documents from defendants that were central to the case issues. Defendant kept producing key evidence that should have been discovered earlier on and after signing affidavits that production was complete. Defendant failed to work with plaintiff and adequately respond to discovery motions compelling production of key data, including Slack messages containing a “smoking gun” for Plaintiff’s case arguments.

Plaintiff filed two sanctions motions which the court granted. Defendant attributed the faulty production to limited financial resources and the difficulty to extract Slack information, but this was refuted by expert testimony that a standard eDiscovery processing tool can handle Slack production at very low cost. This expert also discovered that it was likely some Slack channel data was deleted prior to production. The judge entered a default judgment noting that the law is not a game and this was very egregious discovery behavior.

This ruling illustrates the trend of judges entering harsh sanctions to reach justice. The judge made note that not only did these actions greatly prejudice Plaintiff, but also impeded the court’s ability to manage the case and others on the overloaded docket. Courts are trying to play catch up from the pandemic and are no longer entertaining delay tactics, especially when they are repeated and avoidable. Another key takeaway is that ignorance on how to collect data from new tech sources will not be entertained. Litigators need to understand how collection works and there will likely be new standards in the future on what it acceptable for certain data types.

In re Allergan Biocell Textured Breast Implant Prods. Liab. Litig., MDL No. 2921 | Civil Action No. 2:19-md-2921 (BRM)(ESK) (D.N.J. Oct. 25, 2022)

This multidistrict litigation involved medical malpractice claims that textured breast implants and tissue expanders allegedly increased the risk of lymphoma for patients. A central discovery issue here was whether it is appropriate to deviate from (electronically stored information) ESI protocols. The short answer from this court? No. The parties previously agreed to search term and linear review. While review was in process, Defendants requested to modify the protocol and use TAR in conjunction with search terms. Plaintiffs objected to this change and the court agreed. Several reasons were given including the absence of cost analysis or sample testing to bolster Defendant’s reasoning; that applying TAR after would only be reductive and not pull forward any new documents; and that the parties did not agree to this in the protocol or thereafter as a revision.

This case continues a theme that has repeated over the past few years: protocol language is extremely important and will govern how a judge decides discovery disputes. Some litigators may fear that this signals more court control over technology usage or never allow changes to protocols. However, if the protocol would have left the door open for TAR usage or the parties were able to cooperate and find a solution outside of court then the outcome would have likely been different. This decision should put litigators on notice that more courts are sticking to ESI protocols, encouraging collaboration, and requiring compelling evidence when the parties cannot agree to a deviation.

Mobile Equity Corp. v. Walmart Inc., No. 2:2021cv00126 (E.D. Tex. 2022)

In this patent infringement matter, the parties heavily debated production of Slack channel data, Jira documentation, and additional source code information. Plaintiff filed a motion to reopen a hearing on their previous motion to compel Defendants to produce this ESI, which the court granted. The judge made it a point to mention that Defendants uncooperative attitude towards full production was concerning – specifically with the source code data. Regarding the 40 slack channels at issue, the court directed the parties to meet and confer to narrow the Slack list in order to balance the burden.

The major takeaway here is that the number of relevant ESI sources will only continue to multiply and litigators need to be prepared. Remote working trends and emerging technologies are changing the nature of litigation and those that do not adapt can face case delays, disgruntled clients, sanctions, and negative outcomes. In today’s world it is crucial to anticipate all data types as fair game, be ready to alter workflows, and increase collaboration with opposing counsel to reach proportional solutions.

Raine Grp. LLC v. Reign Capital, LLC, No. 21-CV-1898 (JPC) (KHP) (S.D.N.Y. Feb. 22, 2022)

This was a trademark infringement case where the parties could not agree to certain facets of their ESI protocol prior to moving forward with discovery. A major point of contention was the scope of search terms used. The parties could not agree on search term limitations and modifiers, so this issue had to go before the court. The court noted that it had broad discretion to manage the eDiscovery process and weighed in on how the search terms should be crafted to best capture all relevant documents while remaining proportional.

This ruling has a few key takeaways. First, it demonstrates the value of thoroughly debating ESI protocols before getting in the thick of production and review. By taking time to think through potential issues and bringing disputes to the court at an earlier stage, the parties will have more clarity going into the process and avoid extra costs and delay. Second, it illustrates a longstanding trend of search term issues resulting in proportionality debates. While not addressed here, it will be interesting to see if using TAR or other advanced workflows upfront can help lessen the number of proportionality disputes in the future.

Fast v. GoDaddy.com LLC, No. CV-20-01448-PHX-DGC (D. Ariz. Feb. 3, 2022)

A central issue in this case is when spoliation sanctions are appropriate with ephemeral messaging applications. In this employment discrimination case, plaintiff was terminated by defendant employer and filed suit claiming sex and disability discrimination. The defendants filed a motion for sanctions for failure to preserve numerous sources of ESI including emails, Facebook posts and messages, cell phone data, and Telegram messages. The Telegram issue is of particular interest as ephemeral messaging is currently a hot topic. While still in Defendant’s employ, the plaintiff was getting assistance from a coworker on retrieving Slack data for potential litigation. The pair later talked about this matter over the ephemeral messaging application Telegram, which Plaintiff tried to conceal by failing to preserve the Telegram messages and deleting Facebook messenger exchanges referencing their chats over Telegram. The judge granted the motion and imposed adverse inference sanctions, attorney’s fees and costs, forensic review of devices, and additional subpoena allowances.

Ephemeral messaging is still a developing topic when it comes to business functions so litigators should pay attention to how courts handle discovery disputes in this space. Here, the judge made it clear that parties should never conduct conversations over these platforms when the duty to preserve arises. It is also important to understand when this duty arises, as it can be long before filing suit and will be based on the party’s actions. Here, early gathering of information and retaining counsel for severance negotiations were triggers to preserve and communicate cautiously (even two years before filing this suit). While this does not mean that ephemeral messaging cannot have benefits in the workplace, once litigation is on the horizon these types of data exchanges must cease.

Another key takeaway from this case is the importance of counsel quickly implementing legal holds and ensuring key evidence is not lost. Many would think this would no longer be an issue, but emerging technologies keep this topic at the forefront and present new obstacles to consider. More data sources are harder to capture, can disappear, or may be subject to retention policies without being saved. Here, the judge placed some responsibility on plaintiff’s counsel in this feat and stressed the danger of allowing clients to preserve in place without copying or moving the data.

Conclusion

These cases clearly illustrate that courts are encouraging parties to cooperate, be more proactive, and really think through their ESI protocols. Courts are not afraid to levy harsh sanctions to put litigators on notice of acceptable behavior and expect them to have a handle on emerging technology obstacles. It will be interesting to see how these trends continue to unfold this year (as these issues are still developing) and what new battles come to the table that keep eDiscovery professionals on their toes.