Courts are increasingly adjudicating disputes stemming from our growing digital footprint, such as communication on platforms like Slack, ephemeral messaging services such as Telegram, and even on wearable fitness trackers like Apple Watches. Every minute of the day, Slack users send 148,000 messages, Zoom hosts 856 minutes of webinars, and Microsoft Teams connects 100,000 users. As the cloud and these cloud-based tools have become indispensable to modern business and communication, cloud based ESI has challenged the dominance of traditional documentation as a key source of information used in discovery.
In today’s world, “data is the new oil,” and therefore it’s no surprise that legal teams face numerous challenges in the discovery of this prized commodity. As such, the bench and the bar have grown in sophistication, issuing new case law which provides guidance for ediscovery best practices and trends.
Out of the hundreds of decisions that have been delivered by the courts in the first half of 2022, Everlaw has Everlaw has narrowed down the 16 most important decisions from the first half of the year, now available in a new white paper available for download today.
We believe these cases are instructive as to current ediscovery best practices and trends for legal and ediscovery professionals, and that they reflect the shifting way that clients work and the way legal professionals handle ediscovery today, and include the following:
- Disputes regarding potential sanctions for spoliation of evidence.
- Technology-assisted review (TAR) protocol disputes.
- ESI protocol and search term disputes.
- Proportionality and form of production disputes.
- Disputes over production of metadata for photos and lesser included emails.
- Discovery of various ESI sources, including text messages, source code, audio/video files, and wearables.
Below are three of the most compelling, touching on novel sources of data, search term disputes, and spoliation sanctions due to the use of ephemeral messaging applications. For the full case law review, download your free copy of the entire report here.
Court Orders Production of Jira and Slack Data
In this patent infringement case out of the Eastern District of Texas, the court held a hearing on a series of motions to compel filed by the plaintiff, Mobile Equity Corp., and two motions to compel filed by the defendant, Walmart Inc. One of the plaintiff’s motions involved a Motion to Reopen Hearing on its first motion to compel, which required the defendant to produce additional source code information, Slack channels, and Jira documentation.
The court granted the plaintiff’s Motion to Reopen Hearing on its first motion to compel, stating: The Court is gravely concerned about the continuing resistance – and perhaps defiance – Walmart has shown with respect to the full production of its source code and accompanying documentation. For instance, the Court previously ordered “Walmart to produce any source code contained in [the ‘Store Services’] module. ”Walmart did not. Plaintiff has demonstrated there is additional source code in the “Store Services” module that Walmart failed to produce, despite this Court’s order. The court ordered the defendant to export all code in the GitHub directory for “Store Services,” to produce all Jira documents described on the plaintiff’s Hearing Slide 20 in native format, and to produce relevant Slack channels. Noting that there were “roughly forty” Slack channels the plaintiff identified as relevant, the court stated:
The Court is sensitive to the burden that Walmart would incur if all forty channels are ordered to be produced. The parties are ORDERED to meet and confer and narrow the list of forty channels. The Court is hesitant to place a limit on the number of channels that are to be produced but will resolve any dispute remaining after the parties’ efforts.
This case illustrates the continued emergence of other ESI sources as relevant in litigation cases, including source code and collaboration apps, such as Jira and Slack. Collaboration apps are particularly notable as the use of them has skyrocketed in recent years, especially since the COVID-19 pandemic forced so many teams to work remotely. Source code is often relevant in intellectual property cases where software is involved.
It’s important for parties involved in litigation to consider the potential responsiveness of these ESI sources in their cases and customize ediscovery workflows to support these nontraditional ESI formats.
The Court Dives, Again, Into Search Term Disputes
This dispute from the Southern District of New York involved claims of trademark infringement and unfair competition, where the defendant submitted proposals for addressing two ESI protocol disputes. In the first one, the defendant asked that certain language regarding the parties’ search obligations be included in the ESI protocol, including that “each party has an independent obligation to conduct a reasonable search in all company files,” to address the plaintiff’s plan to limit its search to six identified custodians.
The defendant also proposed limits on several defendant-only and both party search terms and proposed that the plaintiff search for the term “‘real estate’ /30 invest or manage or sell or sale.” The plaintiff objected to the search term “real estate,” even with the modifiers, on the grounds that it was unduly burdensome because it resulted in 1,800 hits for a single custodian and returned non relevant documents. The plaintiff had counterproposals on several of the other proposed search terms as well.
Regarding the language dispute, the court stated:
The Court finds that the proposed language is unnecessary to include in the ESI protocol given applicable discovery rules and overbroad as proposed. As noted above, each party must sign its disclosures and certify that it has conducted a reasonable search. This rule is sufficient to address Defendant’s concerns about Plaintiff complying with its discovery obligations.
The court did advise the plaintiff that searching “non-custodian sources likely to have relevant information” was part of their obligation under Rule 26.
As for the search term dispute, the court stated, in citing the court’s “broad discretion” to manage the discovery process, including determinations regarding search terms:
Search terms, while helpful, must be carefully crafted. Poorly crafted terms may return thousands of irrelevant documents and increase, rather than minimize the burden of locating relevant and responsive ESI. They also can miss documents containing a word that has the same meaning or that is misspelled.
The court then proceeded to rule on the terms in dispute, finding the term “real estate” was overbroad even with the modifiers and that the defendant could explore the business overlap between the parties in a 30(b)(6) deposition, and made proportionality rulings on the other terms as well.
This case is notable for two reasons. The first is the use of an ESI protocol between the parties to govern how discovery would be conducted in the case. Even though there were two issues in dispute, the use of an ESI protocol enabled the parties to proactively address those issues up front, instead of later in the case, with discovery deadlines looming.
The second reason is that this case is yet another in which the parties disputed the scope of search terms, and the court was forced to rule on the disputes. Search term disputes are one of the most common types of discovery disputes, often as part of proportionality disputes, which have skyrocketed in recent years. The more frequent use of TAR workflows in cases like this could reduce the number of documents requiring review, eliminating the proportionality consideration for many of these terms. If only parties would consider the use of TAR more often, we would see fewer search term disputes.
Ephemeral Messaging Leads to Spoliation Sanctions
This decision from the District of Arizona involved claims of sex and disability discrimination against the plaintiff, who had been an employee of the defendant and was terminated. As early as May 2018, while still employed by the defendant, the plaintiff started coordinating with co-worker Lee Mudro to gather instant messages from her work Slack account for use in potential litigation. Despite this, the plaintiff contended that her duty to preserve did not arise until she retained an attorney to file the lawsuit in July 2020.
The defendants moved for Rule 37(e) sanctions, regarding failure to preserve (1) an undetermined number of Facebook posts, (2) 109 unsent Facebook Messenger messages with Mudro, (3) the contents of her iPhone, (4) the contents of her Cox.net email account, and (5) Telegram Messenger messages with Mudro. They also moved for Rule 37(c)(1) sanctions for the plaintiff’s failure to produce (1) 487 Facebook Messenger messages between her and Mudro, (2) at least four covertly made audio recordings of meetings with GoDaddy employees, and (3) emails between the plaintiff and Dr. Donald Rhodes.
The court found that the plaintiff deleted Facebook posts with intent to deprive, stating, “Plaintiff clearly understood Facebook’s archive feature – she used it. By choosing instead to delete posts, Plaintiff consciously chose to make them permanently unavailable.”
And while the plaintiff had eventually produced all but one Facebook Messenger message, the court found intent to deprive of the one message that wasn’t recovered, finding the plaintiff’s explanation for unsending it “implausible.” The court was unable to find intent to deprive on either the iPhone or the @cox.net email account.
Regarding the Telegram Messenger messages, the court stated, in finding intent to deprive:
Plaintiff . . . tried to conceal the existence of Telegram Messenger communications from Defendants. . . . And in her tardy production of Facebook communications with Mudro, Plaintiff manually deleted the exchange that referenced her and Mudro’s communications on Telegram. She then unsent her side of the exchange to prevent Mudro from producing the same messages in response to Defendants’ subpoena.
The court also ruled for Rule 37(c)(1) sanctions for all three categories requested.
Court sanctions included (1) adverse inference sanctions, (2) “some, and perhaps all, of Defendants’ attorneys’ fees and costs” associated with the pursuit of sanctions, (3) allowing the defendants to “conduct a forensic review of Plaintiff’s electronic devices,” and (4) allowing the defendants to “issue up to four additional third-party subpoenas.”
This case had numerous sources of ESI, including email, social media, audio recordings, and collaboration/chat apps (including the ephemeral messaging app Telegram). Knowingly using an ephemeral messaging app when there is a duty to preserve ESI routinely leads to spoliation sanctions.
The plaintiff’s various steps to attempt to hide evidence only made things worse when those steps were discovered. The plaintiff’s claim that she was “the smartest person technically in the room” contributed to the court’s assessment of her intent to deprive and helped lead to her downfall in this case.
Key Trends from the Courts in 2022
Across the cases shaping ediscovery in 2022, a unifying thread emerges: the discovery of an increasing number of ESI sources. Legal teams know how to handle emails and paper documents, but what about communication stored on an Apple Watch, or on a platform designed for ephemeral messaging?
Two other trends are worth noting. On the one hand, the increased number of cases involving ESI protocol disputes is a positive sign that more parties are working to address discovery earlier in cases. However, on the other hand, we continue to see several search term disputes that require court intervention – indicating we’re still stuck on the basics in many instances. Many of these search term disputes might be avoided if more producing parties considered the use of TAR, or technology-assisted review, in their cases. Hopefully, we’ll see more parties evaluate all available technology options to most efficiently and cost-effectively conduct discovery in their cases in the future.
Legal professionals can stay ahead of the curve by embracing cloud-native ediscovery platforms which speed up the review process, make it easier to find and analyze important documents, and keep data secure. Data is already on the cloud, and so is the future of ediscovery.