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 April 13-19. Here’s what’s happening.
Court Enforces ESI Protocol That Reverses Document Dump
We’ve written before about “document dumps” and best practices for avoiding them in production. Now comes a case in which a court addressed what it called a “dump truck” production and gave the receiving party relief from unneeded review to weed out irrelevant documents delivered in unsearchable form.
In Pincus Law Grp PLLC v. MJ Connections, analyzed by Michael Berman on the EDRM Blog, MJ Connections asserted Pincus Law’s production was a “dump” of non-searchable static PDF images. In addition to the searchability issue, MJ Connections also contended that the majority of the more than 12,000 PDF pages were “entirely unrelated” to its request. MJ Connections asked the court to order the plaintiff to reproduce the documents it requested.
Pincus Law said the voluminous production was done in good faith and that the documents were produced in a similar manner as other documents previously produced for the defendant, who had never objected to the form of the production in the past.
Fortunately for the defendant, the ESI Protocol regarding production of native files said: “Counsel may seek supplemental production of native files for any produced images that are deemed unusable, unsearchable, or unduly burdensome.” The court turned to this protocol in directing the plaintiff to reproduce its production not only in a searchable format, but also without the irrelevant documents.
The court wrote: “[B]ased upon the plain text of the ESI Stipulation which the parties knowingly and mutually entered into, Defendant is well within its right to request reproduction of documents which are in an unsearchable form. Indeed, the ESI Stipulation does not include a provision that if a party fails to object to the form of documents produced in one instance the same party is deemed to have waived its right to a future objection. Plaintiff’s argument to that effect is, therefore, unpersuasive.”
The Challenge of Modern Attachments
If you missed Array’s recent webinar on the challenge of modern attachments, here’s a quick recap of what we covered. First, we explained the modern attachment landscape. These are digital pointers within communications that direct users to documents stored elsewhere on the network or in the cloud. Unlike traditional attachments, modern attachments create a hidden network of evidence that standard collection methods fail to capture. Examples of hyperlinked attachments include Google Drive links in Gmail, SharePoint links in Outlook, OneDrive references in Teams, and Dropbox links in communications.
Next, we covered recent case law. Courts remain divided on whether hyperlinked references should be treated as traditional attachments. In some cases, hyperlinks were considered attachments because the ESI protocol clearly defined them as such. Other courts have ruled that current collection tools have limited utility when dealing with hyperlinked documents, making it overly burdensome to try to collect all linked documents referenced in communications. And in one case where the producing party was unable to meet the ESI protocol that called for production of modern attachments, it was ordered to provide a 30(b)6 witness who could testify to everything the party did to produce the linked documents.
Finally, we discussed processing challenges and solutions to reconnect emails with their linked cloud documents, ensuring complete evidence sets, streamlined review, and defensible productions. You can watch a replay of the webinar here.
Other recent eDiscovery news and headlines:
[View source.]
