In Ross v. Abercrombie & Fitch Co., the Plaintiff brought a motion to compel missing electronically stored information. Ross v. Abercrombie & Fitch Co., 2010 U.S. Dist. LEXIS 47620 (S.D. Ohio May 14, 2010).
The Plaintiff claimed the missing ESI should have been produced in response to the Plaintiff’s first request for production. Ross , at *4.
The Plaintiff engaged in a letter campaign and conferences with the Defendant, alerting them to the list of missing electronically stored information over a period of months between August 2009 to January 2010. Ross , at *4-5. The Defendant made an additional production that the Plaintiffs viewed as “woefully inadequate.” Ross , at *4.
Plaintiff’s Motion to Compel Arguments
The Plaintiff argued that all the categories of missing documents were relevant because of their content and relation in time to the litigation. Ross , at *5. There had been a partial production of this information; however there were gaps in the production. Id.
In theory, the responsive information should have been preserved when the Defendant enacted a litigation hold, because the information would have been saved according to the Defendant’s document retention policy. Ross , at *5-6.
The Plaintiff’s request focused on categories of information. The Defendants used a search protocol based on keywords, which they claimed produced more “hits” than the Plaintiffs categorical search. Ross , at *6.
Defendant’s Opposition to the Motion to Compel Arguments
Moreover, the Defendant claimed that the “missing” ESI was only marginally of value and was no basis in requiring them to search for it. Id.
A Cavalier View of Litigation Holds
The Defendant took a unique view of the duty to preserve: they told the Plaintiffs that a litigation hold was not placed on the mainframe computer. So, if there was missing responsive information, that’s why it no longer existed. Ross , at *6-7.
Defendant’s Search & Burden Argument
Whining is not attractive. That was essentially the Defendant’s burden argument.
The Defendant claimed they endured a “massive” burden in performing the first agreed upon key-word search and winnowing out the responsive ESI, conducting their privilege review and ultimately producing the non-privileged responsive electronically stored information. Ross , at *9-10.
The Defendants also performed a second review of the ESI from their search term “Hit List” when the issue of the missing ESI was raised by the Plaintiffs. Ross , at *10.
“We’ve been burdened enough” was the spirit of the Defendant’s arguments from performing their key word search and corresponding review. Ross , at *10.
The “enough is enough” argument did not carry the day. Ross , at *11.
Burden Arguments Must be Specific
The Defendant claimed that any additional searches would be unduly burdensome pursuant to the cost-benefit analysis under Federal Rule of Civil Procedure Rule 26(b)(2)(C)(iii). Ross , at *10.
There is a key element to making an undue burden argument: You must explain why there is burden with specific facts and not speculative declarations it is “hard” or “expensive.” Ross , at *10-11.
The Court found ruling on the Defendant’s burden argument was difficult, because the Defendant did not state how it would search for the missing ESI. Ross , at *10. There was nothing indicating how long it would take to perform any searches or how long such a search world take. Federal Courts cannot limit discovery on claimed “undue burden” without proof supporting good cause. Ross , at *11.
No Prêt-a-Porter Discovery
The Court found that the Plaintiffs justified the need for additional searching of data for the specifically requested missing electronically stored information. Ross , at *12.
However, this came with a big “assumption”: that a search protocol could be devised with a “reasonable likelihood” of finding “some or all of the missing” electronically stored information. Ross , at *12.
The legal burdens and search complexities were summarized by the Court below:
There is nothing in the history of this case to suggest that plaintiff can never make a showing that there are relevant documents contained in data sets other than the ones subjected to the keyword search or in the documents produced to the SEC. True, the plaintiff does face a hurdle in doing so; the initial search and refinements were deemed to be the best way to identify responsive documents, and the data sets they were applied to was created with input from plaintiff (see the Court’s Order of October 27, 2008), so that if the Court were to order other types of searches, there would have to be some reasonable probability that the documents being sought would be found by those searches and that they would not add significantly to the burden which discovery has already imposed on Abercrombie. As already noted, however, Abercrombie, not plaintiff, must quantify that burden, especially where, as here, plaintiff’s request for additional documents is specific rather than general, and the documents at issue are important.
Ross , at *11-12.
What to Wear? Lack of a Search Protocol to Order
The Defendant did themselves a major disservice with their burdensome arguments, reducing the Court to digging through a closet for an answer.
The Defendant’s arguments suggested that any other responsive ESI was only on their mainframe computer, which was not subject to a litigation hold, thus the ESI was lost. Ross , at *12.
Conversely, the Defendant could have also meant the only possible sources for the responsive ESI were on the hard drives that had been searched with their initial keyword search. Since nothing was found, there were simply no other data sources to search. Ross , at *12-13.
The Court also noted that since the Defendant claimed any additional searches would be unduly burdensome, there could be other means to locate the missing electronically stored information. Ross , at *13.
Simply put, the Court did not know the answer, which would be the legal equivalent of searching for a missing dress sock.
Parties Ordered to Meet & Confer
The Defendant was directed to tell the Plaintiff if it believed the ESI still existed, how to search it and the cost in both time and money. Ross , at *13.
The Court did take a small warning shot at the Defendant: they already had one chance to explain how additional searches would have been burdensome and they did not explain how it would be “particularly burdensome.” Ross , at *13-14.
The encouraged the litigations to work out a search methodology and report back to the Court if they could not reach an agreement. Ross , at *13-14.
Bow Tie Thoughts
Attorneys naturally want to throw out every argument they can in a motion. When dealing with electronically stored information, you might end up confusing the court instead of helping yourself.
If electronically stored information is not reasonably accessible, explain in detail why that is the case. The court wants facts, not wild accusations that a search is costly.
Finally, like a bow tie, the meet and confer never goes out of style. Parties need to be specific in discussing their production challenges. Attorneys are well served to have an expert with them who can translate the geek-speak into terms the lawyers can understand, resolve issues with the opposing party and correctly educate the court on e-discovery issues.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.