Preservation Subpoenas

A mere written demand to preserve ESI does not create a binding legal duty on a third party to not destroy the data. In its Commentary on Rule 45 Subpoenas to Non-Parties, the Sedona Conference recommends of the use of preservation subpoena.

It cites Koncelik v. Savient Pharms., Inc., No. 08 Civ. 10262, 2009 WL 2448029, at *2 (S.D.N.Y. Aug. 10, 2009) (“The only thing that is certain is that without preservation subpoenas, the third party corporations in possession of potentially relevant information are free to destroy that information.”). Courts may issue preservation subpoenas when a stay has postponed discovery, or in time consuming multidistrict coordinated cases. These subpoenas must be narrowly tailored to avoid undue burden.

S.D. Ohio: Lawyers Must Understand Cloud Computing

In Brown v. Tellermate Holdings, Ltd., No. 2:11-cv-01122-JLG-TPK, 2014 U.S. Dist. LEXIS 90123 (S.D. Ohio July 1, 2014), Magistrate Judge Terence Kemp faulted the Defendant for failing to identify and preserve data saved with salesforce.com. He ruled that counsel did not meet its obligation under Rule 26(g) to make a reasonable inquiry into the existence of relevant documents, and issued sanctions.

Specifically, Judge Kemp found that Tellermate:

1. Failed to uncover any information about a salesforce.com database.

2. Did not preserve the data on salesforce.com

3. Made false statements to the Plaintiff's counsel that damaged their ability to conduct discovery efficiently.

The Court concluded that, ". . . it is not fair to place the entire blame on Tellermate, even if it must shoulder the ultimate responsibility for not telling counsel what, collectively, it knew or should have known to be the truth about its ability to produce the salesforce.com information. it is hard to overemphasize the fact that none of these representations made any sense at all in light of the way in which Tellermate employees used salesforce.com to improve their sales performance; if they could not go back and see the information after they entered it, it was of little use to them, and Tellermate would not have paid for the licenses for them to use it. Finally, to make matters worse, counsel interjected the totally frivolous argument that the licensing agreement prevented Tellermate from obtaining and disclosing its own information, when the terms of that agreement said just the opposite. This was more than just an abdication of responsibility; it was deliberate obfuscation of the issue. As the facts also demonstrate, this course of conduct was in direct violation of the duty, imposed by federal common law, to preserve relevant evidence. " Id. at *32-34.

Special Master: TAR May Be Ordered if Production Deficient

Earlier this year, Special Master Dennis Cavanaugh issued a decision declining to compel the Defendants to use technology assisted review. See, Order & Opinion of the Special Master, In re Mercedes-Benz Emission Litig., No. 2:16-cv-00881-KM-ESK (D.N.J. Jan. 9, 2020).

The Defendants rejected the notion that the Plaintiffs had the authority to force them to use TAR. They also asserted that ESI using foreign languages; unique identifiers; redactions; and technical information would make the creation of an appropriate seed set difficult. They preferred to search the data of selected custodians with keywords. The Special Master pointed out that there was no case law supporting the position that a party could be forced to used TAR and referenced Principle 6 to the Sedona Conference's Best Practices Recommendations & Principles for Addressing Electronic Document Production, which states that parties are best situated to decide the most effective way to produce their own ESI. However, he also stated that, "Defendants are cautioned that the Special Master will not look favorably on any future arguments related to the burden of discovery requests, specifically cost and proportionality, when the Defendants have chose to utilize the custodian-and-search term approach despite wide acceptance that TAR is cheaper, more efficient and superior to keyword searching." Id. at *3. The Plaintiffs will be permitted to move to compel the use of TAR again, if the Defendants production is deficient.

The parties could not agree on a search term protocol. The Plaintiffs objected to using the same validation process as the Defendants because their review involves a smaller data set with more personal information. The Special Master ordered the parties to meet and confer concerning validation procedures since the Plaintiffs did not propose an alternative process.

The Defendants objected to a request to produce entire network directories known to contain some relevant data. The Special Master ordered the parties to meet and confer about instances where a discrete folder that is reasonably known to contain some relevant ESI may be too voluminous to make a review of each file proportional to the needs of the case.