Decision in W.D. Pa. concerning statistical sampling

On March 21, 2018, Judge Mark Hornak issued a decision in EEOC v. Fedex Ground Package Sys., 2018 U.S. Dist. LEXIS 45884 (W.D. Pa.) denying the defendant's motion to preclude the discovery of ESI. The plaintiff's request concerns, "roughly 193 gigabytes of e-mail data (consisting of 363,765 e-mails and attachments) in the possession of twenty-six corporate custodians." (id. at *3) Fedex's motion was made on the basis of the fact that the search would not turn up sufficient responsive material in order to justify such a broad search. The court held that the request was relevant and proportional, and that it could not be said that the emails were not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(b).

Fedex relied on a statistical sample that showed of about 1000 emails containing selected search terms, only roughly 8% would be responsive. It arrived at this low figured after its review indicated some hits would be withheld on the grounds of privilege, and others would be produced as per other discovery requests. It also pointed out that none of the responsive emails constituted a "smoking gun". Judge Hornak found that, "The Court agrees with the EEOC that FedEx incorrectly attempts to frame relevancy as a binary test where information is either irrelevant or a "smoking gun." {Id. at 8}. The cost of the search was estimated to only be $28,000, plus approximately $3,000 in monthly storage fees. The court gave the plaintiff the opportunity to reverse engineer the statistical sample using the same data set.

A review that would yield 30,000 documents should be considered sufficient reason to search the data set in question. Judge Hornak noted that, "the fact that these repositories create complex mechanisms to store huge amounts of information cannot be used in and of itself as a shield to avoid discovery requests otherwise permitted under the Federal Rules of Civil Procedure." [Id. at *10]. The opinion doesn't go into detail but apparently part of Fedex's argument was that it stored its employees emails on systems that did not facilitate the recovery of the data.

District of Arizona Orders Use of Hague Convention

On March 19, 2018 Judge David Campbell of the United States District Court for the District of Arizona issued an order in River v. Trench Fr., Sas, 2018 U.S. Dist. LEXIS 44120, granting the defendant's motion to produce all documents and ESI according to the Chapter II of the Hague Convention. Chapter II provides for the appointment of a special commissioner to oversee production. Documents can be produced from France despite the restrictions of French blocking statutes when the procedures of the Hague Convention are followed.

Judge Campbell noted that the Supreme Court has ruled that a court can still order parties from countries that are signatories to the Hague Convention to produce documents in violation of a foreign blocking statute and that there is an obligation to comply with the convention. He stated the legal standard as that given in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for S. Dist. of Iowa, 482 U.S. 522 (1987) and included in part in the Restatement (Third) of Foreign Relations Law § 442. The court must analyze

1. the importance of the request documents.

2. the specificity of the request

3. availability of alternative sources of information

4. the extent to which the request interferes with the interests of the United States

5. burden on a foreign national

6. Likelihood of compliance with a discovery order.

In this case, he noted that the Mandatory Initial Discovery Pilot has a broad scope and may encompass documents that are not 'pivotal' to the outcome of the case. The MIDP request was for all documents that "may be relevant" and was thus not narrowly tailored. All of the requested information was located in France. Using the Hague Convention would only delay production by 60 days, and not necessarily demand the use of alternative means of getting the evidence. A violation of the blocking statute would impose hardship on the producing party as it might face criminal prosecution The defendant has agreed comply with the Hague Convention procedures for compliance. All of these factors supported the use of the Hague Convention.

The court also considered the interest of France in not having a U.S. discovery order violate its blocking statute and did not find countervailing U.S. interests.

Communications Decency Act

The Communications Decency Act of 1996, 47 U.S.C. § 230 provides cover for social media companies and internet service providers. It states that, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Both the Second Circuit and the First Circuit, in FTC v. Leadclick Media, LLC, 838 F.3d 158 (2d Cir. 2016) and Jane Doe No. 1 v. Backpage.com, 817 F.3d 12 (1st Cir. 2016) have endorsed a three prong test in order to determine if a provider can be immune from liability for postings on its sites:

1. Is the defendant a provider of an 'interactive computer service'?

2. Does the claim concern information posted by another party?

3. Is the claim treating the provider as a publisher?