Top Twenty-Two e-Discovery Opinions of 2016 – 18th and 17th

This is the third in a twelve-part installment on the twenty-two cases that were the most interesting in 2016. This installment covers the eighteenth and seventeenth most interesting. Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570 (W.D. Va. July 13, 2016) and Mitchell v. Reliable Sec., LLC, 2016 U.S. Dist. LEXIS 76128 (N.D. Ga. May 23, 2016).

EIGHTEENTH – Wagoner v. Lewis Gale Med. Ctr., LLC

judge_ballouThe eighteenth most interesting case for us in 2016 is Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570 (W.D. Va. July 13, 2016). This opinion is written by U.S. Magistrate Judge Robert S. Ballou out of District Court in Virginia. Judge Ballou denied the defendant hospital’s motion to prevent eDiscovery or for cost shifting. This was a very small single Plaintiff ADA case, so you would think that defense counsel could have made out a strong proportionality case to limit discovery, but they did not.

This is proportionality case where we can learn from another attorney’s mistake. Defense counsel here (who, from the order at least, seems clueless about e-discovery) did at least three things here that the e-Discovery Team constantly warns against:

1. The costs cited to buttress the proportionality argument were exaggerated. Defendant claimed it would cost $45,570 to search email of two witness during only a four month time period, with very specific search terms designated. Judge Ballou saw right through that.

2. No alternatives were proposed to the discovery sought. Defense counsel failed to propose any alternative search and review procedure to the one requested by Plaintiff. Judge Ballou did not like that either. Never just say no. Provide a reasonable alternative. That did not happen here.

3. The defendant here stated it had already produced some emails by using only self-search, meaning the defendant witnesses looked at their own email and decided what was relevant, and sent along a few to defense counsel to produce. This procedure was mentioned by by Judge Ballou, and was obviously a factor, but was not expressly criticized.

To make things worse, the client here, a hospital, apparently had a quick email deletion policy in place, and there was no assurance that anything ‘deleted’ by a user would survive more than three days. Bottom line, if you seek protection under Rule 26(b)(1) for disproportionately excessive discovery in a small case, carefully follow the terms of the rule and do your homework and report only valid, unexaggerated burdens.

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SEVENTEENTH – Mitchell v. Reliable Sec., LLC

Judge BavermanThis is another case where we can learn from another’s mistakes. Mitchell v. Reliable Sec., LLC, 2016 U.S. Dist. LEXIS 76128 (N.D. Ga. May 23, 2016). This one is so bad that it was circulated in 2016 in e-discovery social media (not by me) as a WTF type e-discovery case on proportionality. The author of this seventeenth most interesting case of 2016 is U.S. Magistrate Judge Alan J. Baverman in Atlanta.

Here plaintiff in a pregnancy discrimination case asked for the Defendant’s ESI production of relevant emails and spreadsheets to be in Native file format. The defendant employer objected to the format request, saying it was too burdensome to produce in the original format, that it would be less burdensome and cheaper to change the format to PDF and produce that way. That is the WTF moment. Cheaper to pay a vendor to change the format. Huh? I’ve never heard of a vendor charging more not to transform data to PDF. Apparently no one else has either; and, thus the case has people shaking their heads and talking.

Once again defense counsel felt compelled to exaggerate the costs and expenses in a Rule 26(b)(2)(B) accessibility, proportionality argument. That has long been one of the e-Discovery Team’s rules: don’t exaggerate costs to bolster an excessive burden argument.

Even more fundamentally, they broke another cardinal Team rule, never fight over “FORM of Production.” If the requesting party wants Native, give them Native. If they want PDF, give them that. Format doesn’t matter. Do not waste time, client money and your energy fighting over an inconsequential issue like format. (The only reason to oppose Native is to protect confidentiality by use of redaction. You can’t redact a native document. But that was not the case here.)

One thing that parties did right here was raise the defendant’s objection to the plaintiff’s request for native file format at the 26(f) conference and discovery plan report. Kudos to both sides for that. Waiting until the request is made would have made the defendant’s position much worse. Judge Baverman saw this dispute in the CMR and scheduled a telephone hearing on the issue. After the hearing the Judge ordered Defense counsel to file a “status report” with the court “estimating the size of the production and the cost differential between native and PDF production.”

At that point they should have conceded the issue and moved on. But no.  Instead they filed a report by defense counsel estimating the volume of “potentially relevant ESI” to be 3 GBs. (After you dedupe that you are probably down to 2 GBs.) Remember that is “potentially relevant ESI” not production, which is most everyone’s experience is 10% or less of a total mailbox collection, maybe far less. So they did not do what they were asked, but Judge Baverman let that part slide (many would not have been so kind). But then defense counsel starts with the exaggerated costs, which I quote from the opinion at pg. 2 of 5:

Defendant further represents that it will cost approximately $3,000 more to process and produce 3GB of ESI in native format than it would in PDF format, “comprised of a flat rate of $2,000 for ESI processing and production, plus approximately $1,000 for hourly paralegal time ($150/hour) to manage the production of native emails and Excel spreadsheets.”

Huh? That makes no sense. One wonders what vendor they used. The firm may their own “Lit-Support Dept.,” never a good idea in the Team’s opinion, as we advocate for outsourcing.  The personnel in most Lit Support Departments are, shall we say, less skilled than you might assume, and certainly less skilled than any national vendor. How else do you explain such an “representation” to the court by defense counsel. I am sure that defense counsel thought what they were saying was true and made sense. That is probably what their Lit Support Department told them. They did not realize what was perfectly obvious to P’s counsel, and the Judge, (and the rest of the world now reading about this case online), that this representation was wrong. Silly even.

In response, the Plaintiff argued a need to see the original files, the native format, “because the emails and spreadsheets supporting the defense theory are susceptible to post hoc manipulation.” In other words – they did not trust the defendant (or defense counsel) and wanted to see if they altered the data, either accidentally or on purpose. That is not a valid argument on its own, or shouldn’t be (you should not assume fraud & negligence without some supporting evidence), but Plaintiff also argued, quite successfully:

[T]hat Defendant’s statement regarding the estimated additional costs to produce native files rather than PDF files is insufficient because Defendant did not explain how it arrived at the estimated cost it provided, did not provide an actual estimate from an ESI expert or vendor, and did not explain its contention that production of emails and spreadsheets in native format would require more paralegal time to manage the production of native emails; because defense counsel’s own marketing communications suggest that it employs discovery management software commonly used to streamline ESI production; because there are other free or low-cost means of production of the native files; and because Plaintiff’s counsel has offered to assist in downloading emails in electronic format to minimize costs and avoid the retention of an expert or vendor to do the same.

That was a good argument for plaintiff’s counsel. Judge Baverman ruled as you would expect:

the Court remains—as it was at the time of the teleconference—at a loss to understand why the production of native documents is more costly than production of PDF files. The Court therefore finds that Defendant has not made an adequate showing that production of the native files is cost prohibitive.

Now the Judge, obviously annoyed (and who could blame him) goes on to say more, which may come back to harm other defense counsel someday:

Additionally, the Court finds that even had Defendant made a showing that it costs $3,000 more to produce the native files than to produce the PDF files, Plaintiff has shown good cause for the Court to order the production. While there has been no specific reason so far to believe that the emails and scheduling spreadsheets would have been modified since the time period at issue in the suit, it is not at all unreasonable for Plaintiff to wish to verify herself whether the emails or spreadsheets had been subsequently manipulated, modified, altered, or changed. Moreover, while it does appear that Plaintiff’s suit is unlikely to be of an especially high dollar value, the Court finds that the public value of allowing a civil-rights plaintiff opportunity to access information relevant and quite possibly necessary to her pregnancy-discrimination suit far outweighs the asserted $3,000 cost.

Note that the court had not previously disputed defendant’s contention that this was only a $10,000 case. So now we have on record an Order arguably saying (albeit in dicta) that an e-discovery expense of 30% of total case value is not unreasonable due to “public value” of this discrimination case. This is an example of bad facts, and bad lawyering, resulting in bad law, albeit just dicta.

In case you are unsure if Judge Alan Baverman is pissed or not at defense counsel for wasting his time with this motion and “representations” to the court, take a look at his closing sentences. First he gives defendant 14 days to complete the production,  then he adds:

Failure to timely comply with this Order may result in sanctions, which could include the striking of pleadings.

Do not aggravate your judge with unnecessary format disputes and nonsense, exaggerated claims of burden.

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