Top Twenty-Two e-Discovery Opinions of 2016 – 10th and 9th

This is the seventh in a twelve-part installment on the twenty-two cases that were the most interesting in 2016. This installment covers the tenth and ninth most interesting. Venturedyne v. Carbonyx, 2:14-CV-351-RL-JEM (N.D. Ind. Nov. 15, 2016) and McQueen v. Aramark Corp., 2016 BL 396068, D. Utah, No. 2:15-CV-492-DAK-PMW (D. Utah, Nov. 29, 2016).

TENTH – Venturedyne v. Carbonyx

judge_martinMagistrate Judge John E. Martin wrote an e-discovery opinion of interest because of its discussion of cooperation and the negotiation of keywords. Venturedyne v. Carbonyx, 2:14-CV-351-RL-JEM (N.D. Ind. Nov. 15, 2016).

The case started off in typical fashion with a general objection by defendant Carbonyx. They then did a good thing (their last) and “turned over sample emails related to this case to help determine what keywords would be appropriate.” Smart move – avoid the Keyword Fish mistake of negotiating in the blind. Plaintiff Venturedyne responded with a revised Request for Production that narrowed the first request. What happened next should sound familiar. In the words of Judge Martin:

On February 25, 2016, Venturedyne’s counsel sent Carbonyx’s counsel a list of 126 keywords. Venturedyne’s counsel proposed these keywords as a method by which Carbonyx could satisfy its burden to produce material responsive to the Revised Request.

On March 10, 2016, Carbonyx’s counsel sent an email to Venturedyne striking 20 search terms from the list of 126, leaving 105 terms. On April 28, 2016, Venturedyne’s counsel responded by voluntarily removing 28 additional terms, leaving 78 terms. Venturedyne also objected to 7 of the 20 terms deleted by Carbonyx. In all, neither party objected to 78 of the original 126 search terms until Carbonyx responded to this Motion to Compel.

Venturedyne’s counsel sent Carbonyx’s counsel follow-up emails on May 6, May 24, June 3, June 13, and June 30, 2016. Carbonyx’s counsel did not respond to any of these five emails. On July 12, 2016, Venturedyne filed this Motion.

Poor move on the part of Carbonyx’s counsel, Cohen & Malad LLP. Not respond to five emails trying to resolve a discovery dispute?! Judge John Martin was not pleased. No judge would be. Here are our favorite relevant excerpts of Judge Martin’s opinion.

To assist in producing responsive electronically stored information, parties frequently use keyword searches. Keyword searches “have long been recognized as appropriate and helpful for ESI search and retrieval,” but “there are well-known limitations and risks associated with them.” Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 (D. Md. 2008). “Chief among [those limitations] is that such a search necessarily results in false positives (irrelevant documents flagged because they contain a search term) and false negatives (relevant documents not flagged since they do not contain a search term).” Makowski v. SmithAmundsen LLC, No. 08-C-6912, 2012 WL 1634832, at *1 (N.D. Ill. May 9, 2012). As a result, “[e]lectronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI.” William A. Gross Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009).  . . .

In response to Venturedyne’s requests for production of documents, Carbonyx contends that it has produced “more than 12,000 pages of documents, consisting of emails and their attachments, as well as paper documents.” According to Carbonyx, these documents were generated using the search terms “Scientific Dust Collectors”—the name Venturdyne does business under—and “Scientific.” Carbonyx has not objected to the Revised Requests for Production. Instead, Carbonyx argues that a search using Venturedyne’s list of 126 keywords to satisfy its production obligations would be too broad and would include a significant number of non-responsive and irrelevant documents.

Carbonyx here makes the mistake we warn about, they used a very general “too burdensome” argument. They needed to have specific metrics on things like the “false positives” and “false negatives” as mentioned in the prior quote. You need to be specific in your objections as to the burden. To do that you need to get your hands in the digital mud and actually runs searches and do some analysis. For instance, we have done samples of Plaintiff’s keyword requests in some cases and found that only 2% of the docs with hits were in fact relevant. That is the false positives problem. That is very persuasive.

Judge Martin goes on with his good, common sense analysis of defendant’s feeble argument.

Carbonyx’s assertion that the documents it has already produced—retrieved by searching “Scientific Dust Collectors” and “Scientific”—are completely responsive is not convincing. Carbonyx has not told the Court that all documents relating to the Venturedyne contract contained either “Scientific Dust Collectors” or “Scientific.” It seems likely that there are documents in Carbonyx’s possession that do not contain those words but that nonetheless contain information about the contract between Venturedyne and Carbonyx.

Similarly, there are likely other documents in Carbonyx’s possession that had nothing to do with Venturedyne or its equipment but that would still be relevant to this case. For example, . . .

Accordingly, Carbonyx has not satisfied its burden of demonstrating the inappropriateness of Venturedyne’s discovery request. McGrath, 625 F. Supp. 2d at 670. Carbonyx did not object to any of the Revised Requests. Instead, Carbonyx contends that it has completed its discovery obligations by turning over all documents flagged by the “Scientific Dust Collectors” and “Scientific” search terms. As discussed above, that production is an incomplete response to the Revised Request, and additional search terms are appropriate.

Now for the part where the Judge Martin criticizes Carbonyx’s counsel, Cohen & Malad, for their apparent refusal to cooperate. What else would you call ignoring five emails on the subject?

Carbonyx had the opportunity to limit the search terms at issue in this case. Before Carbonyx’s counsel cut off email contact with Venturedyne’s counsel, the parties appeared to be making progress toward an agreed list of search terms. This would have been the better solution and likely would have limited Carbonyx’s expenses in reviewing the results of the searches. But Carbonyx’s refusal to participate in that process now requires that the Court intercede.

That is never a good thing to do. The result is a punishment of the client by granting Plaintiff’s last request in full:

Accordingly, Carbonyx must produce documents flagged by the 78 unopposed search terms contained in DE 48-7. Those terms appear “reasonably calculated to lead to discovery of admissible evidence” in that the terms were based on sample emails related to this case and the parties already eliminated many generic words like “money.” See Fed. R. Civ. P. 26(b)(1).

rule_26b1Ok, so note that Judge Martin did get the relevance law wrong, which again I blame on all of the attorneys involved. The “reasonably calculated” standard was eliminated by the 2015 revision to Rule 26(b)(1), and that revision in turn voided the case law that relies upon the old rule.

Magistrate Judge Martin does get it right on requiring the documents themselves to be relevant, and clarifies that although all documents with the hits must be reviewed, only the relevant ones need be produced:

Furthermore, Carbonyx is free to review the results of the keyword searches and to withhold documents that are truly irrelevant to this case. However, Carbonyx did not object to any of the 28 requests in Venturedyne’s Revised Requests and all 28 requests appear relevant. See Oppenheimer, 437 U.S. at 351. So, any documents that are returned by the 78 keywords and that are within the scope of the 28 Revised Requests must be produced.

Judge Martin concluded by awarding costs under Rule 37(a)(5)(A) with the amount to be determined.


NINTH – McQueen v. Aramark Corp

judge_paul_warnerThe ninth most interesting opinion in 2016 arises out of Salt Lake City and was written by U.S. Magistrate Judge Paul M. Warner. McQueen v. Aramark Corp., 2016 BL 396068, D. Utah, No. 2:15-CV-492-DAK-PMW (D. Utah, Nov. 29, 2016).

This wrongful death case of a construction worker involving late or no preservation notices by Defendant and the destruction of ESI and related paper records. The ESI destruction and paper shredding were allegedly done in accordance with regular practices of the corporation, but after the time in which a hold should have been implemented that suspended such practices. This spoliation was discovered by Plaintiff during a deposition of a key witness who made an off-hand reference to work orders. He later tried to “correct” (change) his testimony with an affidavit, but of course this was denied as not permitted under Rule 30(e).

It is interesting to note that Judge Warner had to order the parties to file supplemental briefs on the impact of revised Rule 37(e). Apparently both sides failed to know that this was the governing law. This kind of mistake is especially damaging to the party defending the sanctions motion, here the Defendant, as the revisions to Rule 37(e) favor the accused. Incredible that defendant missed that.

rule_37eFollowing in a general way the elements of 37(e) (we must assume that the briefing eventually provided by counsel was not very good), “the court finds that Defendant acted with gross negligence, which is insufficient to show bad faith or intent. See Browder, 2016 U.S. Dist. LEXIS 76397, 2016 WL 3397659, at *8.” The court then sanctioned the Defendant as follows:

Thus, the court concludes that a lesser sanction is appropriate. The court orders that the parties will be permitted to present evidence to the jury regarding the spoliation of the work orders and ESI and to argue any inferences they want the jury to draw. The jury will not, however, be specifically instructed regarding any presumption or inference regarding the destruction of those materials. To avoid impinging on the trial judge’s purview in presiding over and conducting the trial, this court leaves to the trial judge to determine the appropriate mechanism for permitting the presentation of the evidence and argument at trial on this issue.

Although a “lesser sanction,” the ultimate ruling here may well still be case dispositive. Just allowing this to be argued to a jury can be very damaging. An actual instruction on presumption (adverse inference instruction) is a guaranteed loss, but the argument alone is a very close second. Motion in limines may be required when, unlike in McQueen, there is some ambiguity on this point in the court’s ruling.

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