Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of September 16-22. Here’s what’s happening.
Reasonableness and preservation
Companies should have and follow a retention policy for electronically stored information (ESI). But simply having “a” policy may not be enough to prove an organization has taken reasonable steps to preserve documents.
At the EDRM Blog, Michael Berman writes about EEOC v. Formel D USA, Inc. The case, which is from Michigan, involves a claim of sexual harassment and retaliation in the workplace. The EEOC sought spoliation sanctions because the defendants reportedly failed to preserve emails, laptops and cellphone data from four custodians.
For a spoliation motion to succeed under Rule 37(e), the party in question must have failed to take reasonable steps to preserve ESI. Courts also examine whether a duty to preserve was triggered and whether the information can be recovered through additional discovery. If they’re awarded, sanctions can’t be any greater than what’s necessary to cure prejudice. To determine if there was a reasonable preservation effort, the court should look at four factors, the judge wrote:
- The party’s level of sophistication in regard to litigation
- The party’s level of control over the lost evidence
- The party’s resources
- Whether there was any evidence of a “routine, good-faith operation of an information retention system”
The defendants argued they had taken reasonable steps. While the devices weren’t available — they were either returned to a vendor or wiped and used by another employee — the company did have a practice of backing up information from its laptops to a server. But the defendants didn’t preserve text messages or other cellphone data. It should have started to do so as soon as it could have reasonably anticipated litigation, the judge wrote: “The record shows no attempt to preserve cellular telephone data. Defendant’s lack of a policy to preserve cellular telephone data does not absolve it of responsibility to preserve ESI under the federal rules.”
The case also involved some missing emails, which should have been saved by the defendants’ laptop backups. But perfection isn’t the standard. Reasonableness is. The judge faulted both parties here. The Federal Rules of Civil Procedure don’t spell out who’s responsible for proving reasonableness. Some courts say it’s the party that lost the data. Others put the onus on the party asking for sanctions. In this case, the judge wrote, neither side adequately addressed that question.
Producing hyperlinked documents
A magistrate judge in California decided that Meta doesn’t have to produce documents that were hyperlinked from documents that it did produce.
The other side argued that hyperlinked documents essentially were the same as email attachments. But the judge agreed with Meta that searching for the hyperlinked documents would require a “substantially greater” effort than producing an email attachment.
The judge also said it wasn’t her place to review each of the documents in question for relevance. (Doug Austin, who writes about the case, asks if the judge could have reviewed at least a selection of the documents to judge their relevance.)
This is an issue that has come up a few times.
To position yourself for success, negotiate questions about ESI scope early, ideally with an eDiscovery expert at your side. You’ll have a better idea of what can be produced with newer tools. And you may be more likely to prevail if you focus on the most relevant ESI and not thousands of hyperlinked documents, where an argument over proportionality could come into play.
Other recent eDiscovery news and headlines:
