Western District of Missouri Orders AND Boolean Connectors Replaced with OR Connectors in Name Searc

This past Friday, Judge Greg Kays issued a decision in Shannon v. Honeywell Fed. Mfg. & Techs., LLC, No. 4:17-CV-00787-DGK, 2018 U.S. Dist. LEXIS 121493 (W.D. Mo. July 20, 2018) granting the Plaintiff's request for new search terms. The Plaintiff sued his employer for discrimination on the basis of age, gender and race. The parties were not able to reach an agreement on how to search the Defendants' ESI An initial search resulted in 2,484 hits, but only 12 unique responsive documents.

The Plaintiff's motion to compel proposed additional search terms, but the Defendants objected on the basis of proportionality, under Fed. R. Civ. P. 26(b). The main difference in the terms used for the Plaintiffs' new search was that they used OR Boolean connectors rather than AND connectors between many terms. A search was to be run for the Plaintiff's first name OR his last name, rather than searching for when the names occur within 3 words of one another. The Plaintiff submitted an email as an exhibit to his motion in which he was referred to only by his first name. The Court ruled that Plaintiff's proposed terms were proportional to the needs of the case.

Given the Plaintiff's estimate of $100,000 in damages, Judge Kays found that the estimated cost of review with the proposed terms of $23,000 would be proportional to the needs of the case. He also took into consideration that the Defendants had sole access to their ESI and possessed the resources to search it, and believed the Plaintiff had demonstrated that his terms would likely find responsive documentation.

The Court rejected the Plaintiff's contention that it was unreasonable to believe that only 12 unique responsive documents could be found in the 2,484 hits from the initial search. Judge Kays reviewed a sample of false hits provided by the Defendants, and noted many clearly irrelevant emails contained search terms such as 'lawsuit'.

"Considering the sample of false hits provided by Defendants, it is understandable how a search with a large number of hits produced a few number of documents." Id. at 7. The Court declined to order a review of the initial search results.

Southern District of Indiana Ruling on the Production of Facebook Messages and Posts

Recently in Bell v. Pension Comm. of Ath Holding Co., No. 1:15-cv-02062-TWP-MPB, 2018 U.S. Dist. LEXIS 119201 (S.D. Ind. June 14, 2018), Judge Matthew P. Brookman denied in part and granted in part the Defendants' Motion to Compel Production of Certain Documents. The suit alleges that the fiduciaries of 401(k) plan were responsible for the payment of excessive management and administrative fees, and providing an imprudent money market fund.

The Defendants' motion sought to compel the production of Facebook direct messages and a post, which one of the Plaintiffs testified about at a deposition. Judge Brookman did not accept the Plaintiffs' argument that the motion to compel should be denied because of undue delay. A request for the Facebook conversations was sent three months after the deposition. A meet and confer on this issue took place two months later in November 2017. Then three days before the deadline for motions to compel on April 30, 2018, the motion to compel the production of Facebook post and messages was filed. Judge Brookman took the parties' focus on class certification motions into consideration and noted the slow pace of the cases was not solely the responsibility of the Defendants.

A stipulated ESI discovery order specified that instant message communications were not reasonably accessible, and would not be subject to discovery. The Court found it could not designate Facebook messages as instant message communications because the order did not specify the accessibility of such messages. It was unclear whether or not 'instant message communications' were defined by the fact that they could be deleted easily, or because they could not be searched by date ranges or subject area.

The discovery order also stated that instant message communications could be produced upon a showing of a particular need justifying the burden of preservation and retrieval. Judge Brookman found that the deposition testimony that there were Facebook messages concerning a Plainitff's view about the lawsuit constituted such need. He also noted that the testimony established that the messages had not been deleted, so there would be no undue burden to preserve and retrieve the messages.

The Court also ruled that the Plaintiff's general feelings about the litigation expressed in the messages did not fall under the work product doctrine. ". . . the Court cannot conclude that the Facebook private message communications are protected by the work product doctrine given that there is no evidence that the communication related to the legal strategies,theories, and mental impressions related to the furtherance of Plaintiffs' case." Id. at *18-19.

The Plaintiffs also contended that they should not have to produce the Facebook post discussed at the deposition, because it was not specifically referred to in the meet and confer and in correspondence which discussed Facebook communications in general. The Court concluded that the Defendants did not meet the burden of establishing the relevancy of the post because it was merely a snapshot of an article about the 401(k) plan inquiry that users commented on. "On its face, the Court does not see the relevancy of Grider's 2015 Facebook post of a snapshot of an attorney inquiry she had read a few times regarding the 401(k) nor, without a more detailed explanation, the relevancy of a few comments back and forth about the snapshot." Id. at *21.

The Court ordered the production of the messages, but denied the request to produce the post.

Electronic Discovery Institute Course - Class 25: Using Experts - Rule 30(b)(6) & Testimony

Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on July 8, 2018. Go to https://www.lawinstitute.org/ to sign up for it.

The course on Rule 30(b)(6) is taught by Seth Eichenholtz, an e-discovery manager with Swiss Re; Ronald Hedges, a former magistrate judge with the U.S. District Court for the District of New Jersey; and Laura Kibbe, the head of data analytics for RVM Enterprises.

What is a 30(b)(6) Deposition?

Rule 30(b)(6) allows a notice to be sent to an entity requesting that someone be made available to answer questions about a certain subject. Such a corporate deponent is not a fact witness, but someone who can answer general questions about a company. A 30(b)(6) deposition may be used to help get further understanding about the sources of data at issue in a case.

Who is an Appropriate 30(b)(6) Witness?

A witness may be asked questions beyond the scope of the 30(b)(6) deposition. In order to guard against the pitfalls of answers to such questions, someone from outside the company may testify on its behalf. Judge Hedges said that the rule does not require that an employee of the company be the 30(b)(6) witness. Multiple people can serve as witnesses under Rule 30(b)(6). An in-house lawyer may make a good 30(b)(6) witness. It may be difficult for a single witness to testify about several different subjects.

Eichenholtz recommended against using an IT person as a 30(b)(6) witness because they might be inclined to go into too much detail about certain issues about data systems, and not be knowledgeable about general issues pertaining to a company.

Should a 30(b)(6) Witness Have Access to Privileged Information?

If a 30(b)(6) witness brings up a privileged document, it can potentially bind a party. The 30(b)(6) witness should be restricted in her access to privilege documents. Judge Hedges recommended against giving privileged information to a 30(b)(6) witness.

Answers to questions should be limited to factual responses and not go into detail about how the facts were obtained.

Should a 30(b)(6) Witness Be Technically Savvy?

Kibbe would rather have someone who is an articulate deponent testify who has to taught certain technical information, rather than use a person knowledgeable about technology be used for a deposition, if they are a poor witness.

Preparing a 30(b)(6) Witness

A good witness will be able to take direction from counsel. It's very important to use a 30(b)(6) deposition to make a party's affirmative case. A specific set of topics should be requested for the 30(b)(6) deposition.

30(b)(6) witnesses may be questioned on a variety of subjects, but the notice should provide a list of the subjects to be addressed. Usually the lists provided are fairly generic - e.g., asking about a company information systems.

Judge Hedges recommended getting a Rule 502(d) order to guard against the inadvertent disclosure of privileged information.

Worst Case Scenarios

A 30(b)(6) witness' admissions are binding to a corporation. A bad 30(b)(6) deposition can have devastating consequences. A witness may get too technical and unintentionally admit to spoliation. Sanctions may be imposed, but judges will not impose sanctions lightly. They may direct a second 30(b)(6) deposition to be taken if the first deposition doesn't cover certain issues.

An opposing counsel taking a 30(b)(6) should not be allowed to go beyond the scope of a specific set of topics.

Attorneys should discuss the possibility of 30(b)(6) depositions at the Rule 26(f) conference. In 2014 case discussed by Judge Hedges, the court directed targeted interrogatories to be served before a 30(b)(6) deposition was taken. He noted that courts don't like fishing expeditions. They will need a reason why questions are being asked about something like a company's IT system.

The amendments to the FRCP in 2015 propose remedial measures as part of sanctions, and, according to Judge Hedges, a 30(b)(6) deposition may be a means of doing this.