“Patent” Model Order on E-Discovery
- “Disproportionate” e-discovery requests are grounds for cost shifting.
- Absent “good cause,” metadata (all that stuff lurking in the background of most electronic documents) is not discoverable – period.
- Discoverable background information about a document is limited to when it was sent/received and the distribution list.
- No more “general” demands for production of email.
- Production of email is limited to “specific issues” that must be separately stated in any request.
- Email production is to be “phased,” and may only take place after exchange of “initial disclosures” and “basic documentation.” A mass tort case would similarly tie email production to specific claimed defects or acts of negligence.
- No blanket email production. Specific custodians, search terms, and time frames must be stated to limit the scope of production.
- Unless the parties agree, email requests are presumptively limited to five custodians per producing party and five search terms per custodian.
- With leave of court, email production of an additional five custodians per producing party and five more search terms per custodian may be had. Anything more than that, and the requesting party must pay for the extra e-discovery itself.
- Limits on overbroad search terms are imposed, and enforced by cost-shifting.
- Privileged e-discovery cannot be used by the requesting party.
- There is no waiver of privilege by the inadvertent production of e-discovery
- “Mere production” of e-discovery as part of a “mass production” is not a waiver for “any purpose.”
We think this model order, and particularly its hard caps, an excellent start to taming the e-discovery monster, which Chief Judge Rader said in his talk “endanger[s] the entire system” and had become “such a burden” that “outweigh[s] any benefit.” The basic foundations of the model order: (1) hard numerical limits; (2) specificity of requests, and (3) cost-shifting for “disproportionate” e-discovery demands, are universal. Since the problems with e-discovery extend far beyond patent cases, we recommend the model order, with minor subject-matter-specific modifications, for use in any litigation, and especially mass torts.
Seventh Circuit Model Order on E-Discovery
- A duty to meet and confer on e-discovery issues (identification, scope, formats, phasing, protective orders) and to identify disputes promptly for early resolution before the case progresses into actual discovery.
- Appointment of e-discovery liaisons who will be the “go to” persons for any e-discovery issues that arise.
- Preservation orders cannot be vague or overly broad and must include specific information delimiting their scope.
- Limits on the scope of e-discovery, including restrictions on discovery relating to preservation itself, and presumptively excluding: unallocated data; ephemeral data; on-line access data; automatically updated metadata; duplicative backup data; and anything else that would “require extraordinary affirmative measures that are not utilized in the ordinary course of business.”
- Identification of discoverable information that prevents duplication, uses filters, and encourages use of “advanced culling technologies” beyond mere keywords.
- Formatting must be agreed upon, and need not improve the original state of the information (no need to make unsearchable documents searchable), although parties may agree to split costs of such upgrades. Any “incremental cost” in creating the requested information is to be borne by the requesting party.
- Both judges and parties need to become educated about e-discovery, which is an excellent subject for CLE.
The Seventh Circuit’s program also relies on a model standing order, which tracks these principles. Here’s a copy of that order.
The Latest On E-Discovery For Defendants
Defendant is attempting to mitigate Plaintiff's privacy concerns by allowing Plaintiff to download and produce the information himself, rather than providing login information. Indeed, Defendant itself notes that it is not seeking unfettered or unlimited access to Plaintiff’s Facebook, but rather limited access during the relevant time frame.
Id. at *1. The sort of voluntary limits discussed in Held are undoubtedly useful in encouraging courts to order discovery of what are still somewhat novel forms of information. Held was a discrimination case, so the court also ordered production of job search website information. Id. While that’s not pertinent to most of our cases, we mention it to encourage defendants to think about what discovery into other types of social media might be relevant in a given case.
Beyond that, the Katiroll includes a useful discussion of “control” that could be helpful in cases where a mass tort plaintiff deliberately attempts to destroy social media evidence and argues that the defendant should have gotten the material itself:
Courts . . . have still found public websites to be within the control of parties who own them. Further, this is an attempt to “pass the buck” to [parties seeking social media e-discovery] to print websites that [social media users] are obliged to produce. Given that [social media users] have a discovery obligation to produce them and that only [they] knew when the website would be changed, it is more appropriate for [them] to have that burden. Thus, the Court concludes that the first factor, [social media users’] control, is present.
Id. at *4 (citations omitted). Thus, a person posting public social media information cannot resist spoliation sanctions by arguing that the other side should have copied the material before s/he erased it.
[T]he Court notes that the change of a profile picture on Facebook is a common occurrence. Active users often change their profile pictures weekly. Therefore, it is hardly surprising that [a social media user] has changed his profile picture during the pendency of this litigation. Further, while [he] was on notice that he had to preserve evidence, it would not have been immediately clear that changing his profile picture would undermine discoverable evidence. As such, the Court determines that this spoliation was unintentional.
2011 WL 3583408, at *4 (footnote omitted). A word to the wise: make sure that preservation orders specifically provide that existing social media is not to be altered. Otherwise, plaintiffs will claim ignorance.
[W]e express some confusion about why the parties required the Court's assistance in deciding what information within Plaintiff's Facebook account is responsive to Defendants' discovery requests and therefore properly discoverable. Although Defendants have taken a broad view of the potential relevance of Plaintiff's Facebook account, Plaintiffs do not appear to have argued that the information in the bulleted paragraphs above should be protected from disclosure in this lawsuit. It is thus unclear why the Court was called upon to conduct an initial review of Plaintiff's entire Facebook account to determine whether it contained potentially responsive, non-privileged information that should be produced as part of discovery in this case. Given that the Plaintiff is the party with the greatest familiarity with his own Facebook account, we submit that it would have been appropriate and substantially more efficient for Plaintiff to have conducted this initial review and then, if he deemed it warranted, to object to disclosure of some or all of the potentially responsive information included in his account.
2011 WL 2491371, at *3 n.3. We concur with the court’s sentiments. Social media e-discovery is here to stay, and both defendants (by using appropriately tailored discovery requests) and plaintiffs (by not treating social media as somehow privileged when it’s not) need to get used to it.
Plaintiff’s counsel could have helped resolve the matter by clearing up the issue of the various witnesses, who are friends of the Plaintiff, to produce the various photos on Facebook. Their resistance does raise the specter with the defendant that there is something there they want to hide.
Id. To prevent future social-media-related discovery disputes, the court in Barnes authorized what we think is an unnecesary “overkill” procedure:
[T]he Magistrate Judge is willing to create a Facebook account. If [certain witnesses] will accept the Magistrate Judge as a “friend” on Facebook for the sole purpose of reviewing photographs and related comments in camera, he will promptly review and disseminate any relevant information to the parties. The Magistrate Judge will then close this Facebook account.
Id. While this procedure would probably work, we really don’t see the reason for it. There’s absolutely no valid claim to any sort of privilege in this type of material, and thus no reason to invest scarce judicial resources in this fashion. Photos are photos, and if social media weren’t involved, this type of issue would be resolved by a simple order compelling production on pain of contempt.