Effective management of discovery disputes is critical in litigation, particularly as courts enforce stricter adherence to discovery deadlines. A recent decision in Valeo Schalter und Sensoren GmbH v. NVIDIA Corp. highlights the significance of addressing discovery disputes early and introduces a novel, but somewhat questionable, judicial approach to testing document relevance. This case provides valuable lessons for litigators navigating electronically stored information (ESI) issues and managing discovery effectively.
Understanding the Case
The decision, authored by Magistrate Judge Virginia DeMarchi of the Northern District of California, arose from four discovery disputes raised by letter after the close of discovery. The disputes ranged from discrepancies in document production to hyperlinked files and 30(b)(6) witness preparation. Judge DeMarchi’s rulings provide critical insights into how courts address timing and substance in eDiscovery.
Key Issues and the Court’s Rulings
1. Timing Matters in Discovery
Discovery deadlines are firm, and courts are increasingly unwilling to extend them absent good cause. In this case, Judge DeMarchi considered whether her rulings could proceed under standing orders from two different district judges. Despite procedural timing challenges, the court resolved the disputes on their merits, underscoring the importance of adhering to discovery schedules.
Takeaway:
- Calendar all deadlines meticulously and set reminders well in advance.
- Ensure all discovery disputes are identified and raised with plenty of time before of the cutoff to allow for follow up.
2. Testing Document Relevance: A Novel Approach
Plaintiffs highlighted a significant gap between the number of documents hitting on agreed upon search terms and the number of documents produced. To address this, the Court ordered an “experiment”: the plaintiff could select 100 control numbers from unproduced documents, which NVIDIA would review for privilege. Any non-privileged documents would then be produced to the plaintiffs for relevance assessment.
This approach departs from the traditional trust-based model of party discovery and raises significant questions about its broader implications.
Takeaway:
- Be prepared to justify production methodologies with facts and data, and work to eliminate or narrow search terms that hit on broad categories of non-responsive documents
- Consider how search term negotiations and documentation can support or defend production decisions.
- Be prepared to have to engage in this type of court ordered “experiment” if the disparity between search term hits and produced documents is significant.
3. Hyperlinked Files and Their Production
The court ordered NVIDIA to produce 10 hyperlinked documents requested by the plaintiff. This ruling is a reminder to address the treatment of embedded documents and hyperlinks early in the discovery process.
Takeaway:
- Include specific instructions for hyperlinked or embedded files in your ESI protocol.
- Anticipate disputes related to these files and negotiate resolutions early.
4. 30(b)(6) Witness Preparedness
The final issue involved the preparation of 30(b)(6) witnesses. Plaintiffs argued that some designees were unprepared to testify on assigned topics. The Court directed the parties to meet and confer, underscoring the importance of clarity and preparation in corporate depositions.
Takeaway:
- At the deposition, confirm on the record which topics the witness is prepared to address.
- Probe the witness’ background and preparation to ensure they are the best representative for the topic.
- Get all information you need for the court to make an argument in the record at the deposition; courts will not rely on the arguments of attorneys, but require a separate factual basis like the witness’ actual testimony on an issue.
Broader Lessons for Litigators
- Timing Is Critical: Plan discovery strategically to ensure all disputes are addressed within the court’s deadlines. Late motions risk being denied outright.
- Be Proactive in Negotiations: Set clear expectations for the form and manner of production, and address potential disputes about hyperlinked files and metadata organization upfront.
- Build a Strong Factual Record: Courts rely on facts, not just arguments. Provide detailed evidence to support claims about production discrepancies or other discovery issues.
- Master the ESI Protocol: Use your ESI protocol to establish terms for production, hyperlinked files, and metadata fields that aid organization.
Final Thoughts
The Valeo decision underscores the dynamic nature of eDiscovery and the importance of staying ahead of deadlines and disputes. Whether addressing the production of hyperlinked files, resolving 30(b)(6) witness issues, or tackling discrepancies in document production, careful planning and proactive measures are essential. By incorporating these lessons into your practice, you can effectively manage discovery and position your case for success
