M.D. Ala.: E-Discovery Consultant's Database Review Insufficient to Certify Class

Last week, Judge Royce Lamberth issued a decision, McCullough v. City of Montgomery, No. 2:15-cv-463-RCL, 2020 U.S. Dist. LEXIS 241634 (M.D. Ala. Dec. 23, 2020) denying the Plaintiffs' motion for class certification.

In order to assist them in ascertaining the class members, the Plaintiffs engaged an e-discovery consultant who was tasked with reviewing data in court databases tracking the probation records of a municipal court and a probation services company. The Plaintiffs' suits alleges that the Due Process Clause, the Equal Protection Clause, and 42 U.S.C. § 1983 (which provides a right to sue state governments for civil rights violations) were violated when traffic offenders were jailed for failing to pay fines.

The database records did not show whether or not plaintiffs whose sentences were commuted from fines to jail time actually served that jail time, or if the probation service which is a co-defendant in the case was responsible for supervising that probation. The databases only tracked when fines had been commuted to jail time. Judge Lamberth noted that transcripts and release orders often did not make clear if offenses resulted in actual jail time, or if probationers would have served the same amount of jail time for other offenses for which the commuted time would have been served concurrently. He concluded that:

"The work and testimony of plaintiffs' expert Mr. Rubens [the e-discovery consultant] confirms that the class is not ascertainable. At the class certification hearing, Mr. Rubens repeatedly told the Court that the plaintiffs' attorneys had to make 'judgment calls' about whether or not to include people on the class lists when his work did not produce a definite answer. During direct examination, Mr. Rubens analogized this attorney review process to document review in discovery where a consultant may filter documents before an attorney makes a legal judgment about whether the document is responsive or non-responsive. But that analogy does not hold for the application of objective fact-based criteria like class parameters. If applying class parameters requires legal judgment, then the class has not been objectively defined." Id. at *45-46.

The Court further faulted Rubens for being unable to explain at a hearing why certain individuals who should have been members of the defined class were omitted, and criticized his methodology because exhibits showed it was inconclusive in establishing whether or not some individuals were class members. The Plaintiffs thus could not certify a class for their civil rights claim.

The Plaintiffs also sought to certify a class for an abuse of process claim for probationers who paid less than the minimum monthly requirement. Rubens relied on a field in a database that tracked the minimum amount. Judge Lamberth rejected this approach because, "the plaintiffs' method for defining the class does not necessarily turn on the content of the probation orders. Perhaps that data will match the Municipal Court's records; perhaps it will not." Id. at *51.

New York State Court Rules on Third Party ESI Request

In August 2014, the Chief Administrative Judge of the New York State implemented Rule 11-c for the Uniform Rules for the Supreme and County Courts of the State of New York which requires parties to adhere to guidelines for ESI discovery from nonparties stated in an appendix to the rule.

The guidelines specify the following:

1. The requesting party and the nonparty are encouraged to discuss ESI discovery issues as early as possible.

2. Nonparties from which ESI is sought should be contacted to discuss the implementation of a litigation hold.

3. ESI discovery requests from a nonparty must be proportional taking into account:

a. the importance of the issues at stake.

b. the amount in controversy.

c. the importance of the ESI.

d. availability from other sources.

e. the accessibility of the ESI.

f. the burden and cost.

4. Discovery motions are discouraged. The party must meet and confer with the nonparty, and can conduct a conference with the law clerk, a special referee or a mediator.

5. The requesting party must pay the costs of the nonparty's counsel; e-discovery consultations; electronic discovery itself (identification, preservation, collection, processing, relevancy review, and production are specifically mentioned); and privilege logs.

6. The requesting party may also have to pay for quantifiable costs from disruptions to business operations.

Rhode Island Makes It Easier to Get an Expert's Documents

Paralegals often spend a lot of time tracking down materials cited in expert reports. In addition to produced documents and deposition testimony taken in the case the report is prepared for, experts often also rely on other documentation which is difficult to locate if it is indeed publicly available. Four years ago, the Supreme Court of Rhode Island issued a decision, Cashman Equip. Corp. v. Cardi Corp., 139 A.3d 379 (R.I. 2016), which found that a lower court correctly denied a motion to compel all documents considered by an expert in his written opinion. The Court concluded that, "Our review of the language of Rule 26(b)(4)(A) leads us to the ineluctable conclusion that that rule is indeed clear and unambiguous . . . It does not provide for the disclosure of documents. " Id. at *382-83. Rule 26 had only specified that interrogatories can be submitted regarding expert witnesses, and that expert witness can be deposed. The Court noted its strong policy in favor of safeguarding the work product of expert witnesses.

Thursday, an order was issued amending Rule 26(b)(4)(A) to include the following, "A party may, through a request for production pursuant to Rule 34, a request attached to a notice of deposition pursuant to Rule 30(b)(5), or subpoena duces tecum pursuant to Rule 45, require any other party to produce all documents and materials relied upon by a person whom the other party expects to call as an expert witness at trial in formulating that expert's opinion(s). If documents and materials are requested, the procedures of Rules 34 and 45, respectively, shall apply to the request." In re Amendments to the Superior Court Rules of Civil Procedure, 2020 R.I. LEXIS 74, at *4-5 (Dec. 10, 2020).

In Rhode Island the Rules of Civil Procedure are amended when a majority of the members of the Rhode Island Superior Court make a recommendation to the Rhode Island Supreme Court that the Supreme Court approves.