Who Determines eDiscovery Requirements for ESI Production?

Can a party choose to decide that it has produced enough relevant ESI? Can it simply say enough is enough? Not according to one court in the Northern District of California despite claims by Defendant that it had complied with its discovery obligations.

An opinion dated October 28, 2016, in the matter of Curtis Johnson v. Serenity Transportation, Inc., et al., (“SCI”) addressed a discovery dispute that comprised claims by Plaintiff that Defendants’ withheld emails that were responsive to search terms and also waived attorney-client privilege by producing an insufficient privilege log.

Plaintiff requested that the Court immediately order Defendant to produce all documents responsive to Plaintiff’s search terms. Defendants’ position was that:

  1. “It has produced all relevant, non-privileged responsive documents so any production of further documents is duplicative and not proportional to the needs of the case; and
  2. Plaintiff has waived any argument about privilege by making no effort to meet and confer on that issue.”

Background Facts of the Case

  • Plaintiff provided a list of search terms that were to be run across a set of data and all non-privileged hits were to be produced
  • Despite its belief that the list of terms for keyword searching was too broad, Defendant searched, reviewed and produced a set of documents
  • In addition to the documents produced, Defendants also handed over a search term hit report
  • The hit report showed many more emails than the Defendants actually produced, which prompted Plaintiff to request further production
  • After “significant meet and confer efforts”, an additional 25 non-privileged documents and a privilege log for three documents were delivered

eDiscovery Requirements Questioned Under FRCP 26(b)

“Plaintiff now argues that four of those 25 documents are relevant to the joint employer question at issue in SCI’s summary judgment motion, which indicates that SCI has been withholding relevant documents.”

Defendants’ believed it had no obligation under Federal Rule of Civil Procedure 26(b) to produce any of the four documents for the following reasons:

  1. Their position was the emails were unreasonably duplicative of prior discovery
  2. They also felt that further discovery is not proportional to the needs of the case
  3. And lastly, they believed they had no obligation to produce any further documents responsive to the search terms.

Well, regarding number 1, a document is either a duplicate or not and I have no idea what unreasonably duplicative means. I think they were going for substantively duplicative, but as we will see the Court wasn’t buying it.

As for the 2nd argument, would adding 4 documents to a production tip the scales of proportionality? On the 3rd point, how did they come to the conclusion that they didn’t have an obligation when they agreed to produce all documents responsive to the search term list provided by Plaintiff? Baffling on all 3 points.

Discovery Scope and Limits

Scope in General – Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding:

  • any non-privileged matter that is relevant to any party’s claim or defense
  • and proportional to the needs of the case,
  • considering the importance of the issues at stake in the action,
  • the amount in controversy,
  • the parties’ relative access to relevant information,
  • the parties’ resources,
  • the importance of the discovery in resolving the issues,
  • and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Information within this scope of discovery need not be admissible in evidence to be discoverable.

Court’s Opinion on Fulfillment of eDiscovery Requirements

As to the first argument that the emails were unreasonably duplicative the Court stated:

“Although the forms themselves have already been produced and discussed in multiple depositions a defendant does not have discretion to decide to withhold relevant, responsive documents absent some showing that producing the document is not proportional to the needs of the case. SCI has made no such showing.”

As to the second argument that additional discovery was not proportional, the Court stated:

Defendants’ “withholding of these four relevant documents—emails that are responsive to the search terms and say either ’Serenity‘ or ’Friedel‘—without any showing of burden that would render production out of proportion to the needs of the case was improper.”

My comment – It’s 4 emails, not 40,000.

And as to the last argument the Court simply stated, “[a] party cannot unilaterally decide that there has been enough discovery on a given topic.”

The Court also stated that these four emails may indicate that other relevant ESI was being withheld and ordered Defendant “to produce all non-privileged, relevant documents that include the search terms ’Serenity‘ or ’Friedel’.”

Discovery Procedures Must be Defensible

In my opinion this appears to be either hide the ball tactics or ignorance on the side of the defendants’. Neither one is good. Plaintiff was right to question the production of relevant ESI based on the inconsistencies with the hit list and number of produced documents. However, I would have gone a few steps further and questioned defendants’ counsel on how they conducted discovery.

  • Did they hire an outside expert or eDiscovery vendor to assist with their discovery obligations?
  • What specific software applications were used to conduct the search and production?
  • What method of search did they use?
  • Was the entire universe of documents in play completely indexed and searched?
  • What about documents not containing text (i.e. non-text PDF files)?

What about the privilege log issue? Plaintiffs’ contention was that it only listed 3 emails and the log itself was deplete of information that would allow Plaintiff or the Court to evaluate whether privilege applies. I am assuming they listed 3 emails and provided no corresponding metadata such as sender, recipient, subject, etc. That’s not a privilege log.

Plaintiffs asked the Court to waive privilege due to these deficiencies, but the Court denied the request and instead ordered Defendant to produce an adequate log at a later date.

More hide the ball or plain ignorance on the part of the Defendant? As Oscar Wilde said: “Ignorance is like a delicate exotic fruit; touch it and the bloom is gone.” I’m not 100% positive but I think that translates to: If you are facing a discovery request and you are a delicate exotic fruit then find an expert gardener or you could end up in a worse situation than missing a bloom or two.

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