Top Twenty-Two e-Discovery Opinions of 2016 – 14th and 13th

This is the fifth in a twelve-part installment on the twenty-two cases that were the most interesting in 2016. This installment covers number fourteen and thirteen.  Odeh v. City of Baton Rouge / Parish of E. Baton Rouge (M.D.La. Mar. 29, 2016, No. 14-793-JJB-RLB) and Oracle v Google.

FOURTEENTH – Odeh v. City of Baton Rouge / Parish of E. Baton Rouge

judge_richardbouregeoisThe fourteenth most interesting case of the year comes out of the District Court in Baton Rouge, Louisiana. Odeh v. City of Baton Rouge / Parish of E. Baton Rouge (M.D.La. Mar. 29, 2016, No. 14-793-JJB-RLB), 2016 U.S. Dist. LEXIS 41079. It was authored U.S. Magistrate Judge Richard L. Bourgeois, Jr.

It is an employment case. The description of it by Judge Bourgeois sounds like many cases that we see:

In his Complaint, Plaintiff claimed he was subjected to a hostile work environment, transferred to a less-desirable position and constructively discharged based on his national origin and in retaliation for opposing employment discrimination. Plaintiff additionally alleged that he was retaliated against for engaging in protected whistleblower activities in violation of Louisiana Revised Statute § 23:967.

Motions by Plaintiff to compel discovery were heard, including oral argument. The employer lost most of the argument on one issue (Production No. 4) and was required to search for and produce all complaints against it “based on national origin or race,” and not just national origin complaints (Plaintiff is of Arab descent) as employer argued. The court did, however, limit the time from the ten years to five years. Here is the legal basis for the ruling (with helpful Google hyperlinks preserved) (bold highlighting added to original):

Other claims of discrimination against an employer have been found relevant to a discrimination claim if limited to the (a) same form of discrimination, (b) the same department or agency where plaintiff worked, and (c) a reasonable time before and after the discrimination occurred.” Willis v. U.S., 2012 WL 5472032, at *1 n.6 (M.D. La. Nov. 9, 2012)see also Marchese v. Secretary, Dep’t of the Interior, 2004 WL 2297465, at *2 (E.D. La. Oct. 12, 2004) (same); Mitchell v. Nat’l Railroad Passenger Corp., 208 F.R.D. 455, 460 (D.D.C. 2002) (same). The relevant timeframe may range, depending on the facts of each case. However, courts have generally limited discovery of other employees’ claims of discrimination to 3 to 5 years. Gillum v. ICF Emergency Management Services, L.L.C., 2009 WL 2136269, at *6 n.5 (M.D. La. July 16, 2009) (limiting discovery of other claims of discrimination to “the past five (5) years”) (collecting cases); Marchese v. Secretary, Dep’t of the Interior, 2004 WL 2297465, at *2-3 (E.D. La. Oct. 12, 2004) (3 years).

To begin, Plaintiff’s Request, including his proposed limitation, is overly broad to the extent it seeks complaints filed within the past ten years. Consistent with the case law cited above, Plaintiff’s Request will be limited to complaints made during the last 5 years of Plaintiff’s employment.

Second, the Court rejects Defendant’s argument that complaints of race discrimination are irrelevant. Plaintiff, “who is of Arab decent, . . . contends he has been discriminated against and harassed on account of his national origin. . . .” (R. Doc. 6 at 1). “[I]n the Title VII context, the terms [race and national origin] overlap as a legal matter.” St. Francis College v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring) (The “line between discrimination based on `ancestry or ethnic characteristics’ and discrimination based on `place or nation of origin,’ is not a bright one.”); Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. 1981) (“In some contexts, national origin discrimination is so closely related to racial discrimination as to be indistinguishable.”);Godbolt v. Hughes Tool Co., 63 F.R.D. 370, 374 (S.D. Tex. 1972) (“[A]s a practical matter, discrimination against `national origin’ minorities differs little, if at all, from discrimination against `racial minorities.'”); EEOC Compliance Manual § 15-II (Aug. 2009) (“Discrimination against a person because of his or her ancestry can violate Title VII’s prohibition against race discrimination.” While they are not identical, “there can be considerable overlap between `race’ and `national origin’. . . .”); EEOC Compliance Manual § 15-IV(A) (Aug. 2009) (“National origin and race often overlap because persons who themselves are, or whose ancestors were, of the same national origin frequently are of the same race.”). In fact, the Supreme Court has found that discrimination based on a person’s Arabic-ancestry can constitute discrimination on the basis of race. St. Francis College, 481 U.S. at 613. As such, Plaintiff is entitled to complaints of discrimination, harassment or retaliation based on race or national origin.

So far this is pretty routine, but the ruling on the other production requests (No. 6) is more interesting and instructive. Here Plaintiff sought production of all of his own email, a request we frequently encounter. Defendant employer objected, as it should. Here is the excellent language Defendant used:

The City-Parish objects to this Request for Production as overly broad, unduly burdensome, and vague and as seeking matters that are not relevant to any party’s claim or defense and not proportional to the needs of the case. Plaintiff’s email inbox for his account includes approximately 64,685 email messages. Prior to production, any such emails would have to be reviewed for privilege.

The Defendant supported this objection in opposition memos with the Rule 26(b)(1) argument on disproportionate burden, summarized by the court as follows:

Aside from its privilege argument, Defendant additionally suggests that reviewing all 64,685 emails would be unduly burdensome considering Plaintiff has not shown how his entire email inbox from 2001 until 2014 is relevant or proportional to the needs of the case. (R. Doc. 60 at 3). Specifically, “Plaintiff did not limit the scope of this request to email messages he received from a certain person, . . . during a certain time, or. . . that include certain search terms.” (R. Doc. 60 at 4). Moreover, in responding to Plaintiff’s other discovery requests, Defendant has diligently searched Plaintiff’s email inbox and presumably produced any responsive emails. (R. Doc. 60 at 4).

Of course Plaintiff said there were no privileged communication to him, so the City would not have to review them. (He may also have argued, or could in other cases, that the D. was anyway protected by clawback and confidentiality agreements, orders.) Plaintiff also argued there is no burden in just turning over the Plaintiff’s own email box to him, after all he had already seen them. There would be no need for the Defendant to review them first. These arguments are very familiar to us. If you have not heard them already, you will soon enough.

Now for the best part of the opinion, Judge Bourgeois (love the name) ruled as follows (emphasis added):

Plaintiff has not shown how his entire email inbox between 2001 and 2014 is relevant and discoverable. As the Court explained during the hearing, an email inbox, in general, has little relevance. Instead, it is the information and communications contained within those emails that may be relevant. Plaintiff has not demonstrated that the existence of the inbox or any particular email is in any way relevant in this matter. If Plaintiff needs certain types of information, regardless of whether that information is found in an internal memorandum, email, letter, etc., he may specifically request the type of information sought, regardless of whether it may be found in an email inbox or stored in some other more conventional manner. As the requesting party, Plaintiff has an obligation to sufficiently describe each item or category of items he desires. Fed. R. Civ. P. 34(b)(1)(A) (a request for production should describe the sought after items with “reasonable particularity”). He has failed to do so in this request. Plaintiff’s Motion to Compel is therefore DENIED as to Request for Production No. 6.

This is good language that we suggest you save and use. Before you do, however, you should ask opposing counsel for clarification and particulars. Document the request with an email. After they refuse or fail to do so, you have also set them up for a failure to cooperate argument. Once the judge sees that, well, its game over for opposing counsel. 


THIRTEENTH – Oracle v. Google

judge_william_alsupThe September 27, 2016 Order by Judge William Alsup, Northern District of California, in Oracle America Inc. v Google Inc., No. C 10-03561 WHA (ND Ca., Sept. 27, 2016) is an e-discovery shocker. The order came out of a motion for new trial after Oracle lost a jury trial. The basis of the motion was alleged e-Discovery abuses by Google, primarily the withholding of key evidence. Tsk, tsk. Bad Google?

Oracle v Google is a MULTI-BILLION DOLLAR copyright infringement case. Probably the biggest jury trial of the year in 2016. Tens of millions of dollars have, I presume, been spent on legal fees by Oracle. And yet, a major e-discovery blooper was made by Plaintiff’s counsel in the motion for new trial.

You are not going to believe what Oracle’s lawyers did wrong. THEY DID NOT READ THE ELECTRONIC DOCUMENTS PRODUCED TO THEM. THEY DID NOT KNOW THAT CRITICAL EVIDENCE HAD BEEN PRODUCED TO THEM BY GOOGLE, AND INSTEAD ACCUSED THEM OF WITHHOLDING THAT EVIDENCE. Sorry, but that deserves all caps IMO. This case shows the critical importance of electronic document review.

Here is the key language from Judge Alsup’s lengthy opinion explaining the issue and how it unfolded (emphasis added):

Oracle’s motion for a new trial challenges several discretionary decisions made at trial.
Oracle’s primary argument, however, is that Google perpetrated discovery-concealment
misconduct. The charged misconduct, Oracle says, rates as a “game changer.” …

With the benefit of the foregoing history of the smartphones and tablets limitation, we
turn to Oracle’s charge of discovery misconduct. This charge is not anchored in any claimed
error by the judge but is anchored in claimed misconduct by Google and its counsel. …

Oracle now accuses Google of withholding evidence in discovery that allegedly would have shown that
Google was, by the close of our retrial, expecting soon to implement Android on desktops and
laptops too. …

The oral argument on Oracle’s motion for a new trial, which lasted two hours, focused
almost exclusively on Oracle’s “game changer” allegation of discovery misconduct. Following
the hearing, counsel for both sides were ordered to file sworn declarations detailing Oracle’s
discovery requests on this point and Google’s responses. After reviewing the parties’
submissions, the Court called for sworn replies.

Throughout the briefing and argument on this motion, Oracle left the distinct
impression — more accurately distinct misimpression — that Google had stonewalled and had
completely concealed the ARC++ project. This was an unfair argument.
In fact, Google timely produced at least nine documents discussing the goals and
technical details of ARC++ and did so back in 2015, at least five months before trial. Counsel
for Oracle now acknowledges their legal team never reviewed those documents until the
supplemental briefing on this motion (Hurst Reply Decl. ¶ 12). The Court is disappointed that
Oracle fostered this impression that no discovery had been timely provided on the ARC++
project eventually announced on May 19.3 …

Oracle should have known that items produced in response to its own document
requests potentially contained information that supplemented Google’s earlier written
discovery responses. Oracle’s failure to review the ARC++ documents is its own fault. …

Oracle already had evidence of ARC++, but didn’t realize it. Thus, to the extent Google’s recent
announcement had any value at our trial (or in discovery), Oracle already had evidence of the
same project (and its predecessor), and it passed on any opportunity to introduce that evidence.

Contrary to Oracle, ARC++ documents were in fact timely produced. They laid out the basic goals and technical details of the very product referenced on May 19. Since Oracle had that information, there was no need to supplement the written discovery to the extent evidence of ARC++ was responsive at all. Moreover, any further disclosure of ARC++ would have been of no consequence in Oracle’s preparation for our trial or its presentation at trial, which later became limited in scope to smartphones and
tablets. This ground for a new trial is rejected.

EDR_lookTrial Prep Tip – review the documents that are produced to you, even if it is a document dump in a giant case. You will be presumed to know every document that was produced. Especially review the documents produced to you before you accuse the other side of unethical with holding of evidence, a “real game changer” as Oracle’s attorneys put it. Yes it was a game changer, just not the way they thought.

If you do not know what documents have been produced to you, then not only can you lose the case, but you can lose all credibility with the judge, and others. There is no safety in numbers. One high quality e-discovery specialist could have stopped this mistake. Here are the attorneys shown in Judge Alsup’s opinion to be of record for Oracle.

Oracle America, Inc., Plaintiff, was represented by Annette L. Hurst, Orrick, Herrington & Sutcliffe LLP, Gabriel M. Ramsey, Orrick Herrington & Sutcliffe LLP, Karen G. Johnson-McKewan, Orrick Herrington & Sutcliffe LLP, Alanna Rutherford, Boies, Schiller, Flexner LLP, pro hac vice, Alyssa M. Caridis, Orrick, Herrington & Sutcliffe LLP, Andrew David Silverman, Orrick, Herrington and Sutcliffe LLP, Ayanna Lewis-Gruss, Orrick Herrington Sutcliffe LLP, pro hac vice, Beko Osiris Ra Reblitz-Richardson, Boies Schiller & Flexner LLP, Christina Marie Von Der Ahe, Orrick, Herrington & Sutcliffe, LLP, Daniel Pierre Muino, Morrison & Foerster LLP, David Boies, Boies Schiller and Flexner, pro hac vice, Deborah Kay Miller, Oracle USA, Inc. Legal Department, Denise Marie Mingrone, Orrick, Herrington & Sutcliffe LLP, Dorian Estelle Daley, Geoffrey Gavin Moss, Orrick Herrington Sutcliffe LLP, Jeffrey Larter Cox, Orrick Herrington & Sutcliffe LLP, pro hac vice, Kenneth Alexander Kuwayti, Morrison & Foerster LLP, Lisa T. Simpson, Orrick, Herrington, Sutcliffe LLP, Marc David Peters, Morrison & Foerster LLP, Matthew Lee Bush, Orrick, Herrington and Sutcliffe LLP, pro hac vice, Matthew M. Sarboraria, Oracle Corporation, Meredith Richardson Dearborn, Boies Schiller et al, Michael A. Jacobs, Morrison & Foerster LLP, Michelle OMeara Cousineau, Orrick Herrington and Sutcliffe LLP, Nathan D. Shaffer, Orrick, Herrington & Sutcliffe LLP, Peter A. Bicks, Orrick Herrington Sutcliffe LLP, pro hac vice, Randall Scott Luskey, Orrick Herrington & Sutcliffe, Robert P. Varian, Orrick Herrington & Sutcliffe LLP, Ruchika Agrawal, Oracle America, Inc., Steven Christopher Holtzman, Boies, Schiller & Flexner LLP, Vickie L. Feeman, Orrick Herrington & Sutcliffe & Yuka Teraguchi, Morrison Foerster LLP.

All of these attorneys, and I suspect hundreds more, including document review contract lawyers, and they still did not know that Google produced key documents to them? They still did not know when they decided to accuse Google’s attorneys and base a new trial request on the alleged withholding of critical evidence? I have never heard of anything like this.

The Oracle v Google opinion by Judge Alsup again shows the importance of quality electronic document review. Oracle America Inc. v Google Inc., No. C 10-03561 WHA (ND Ca., Sept. 27, 2016). Remember, you are required to produce relevant evidence. You are not required to highlight the hot documents you produced. It is up to the receiving party to do their own due diligence.

LoveIf you get hit with a document dump in a big case, let somebody like our e-Discovery Team know about it and handle it for you. Groups like our love to look at millions of files (even a few hundred thousand is fun). We can help you to unearth the key evidence. Never take it for granted that you know there is nothing worthwhile in a production. Never assume that careful document review is not needed. That is a big budget mistake, as the Oracle trial team now knows.


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