Responding to requests for production requires the producing party to have a plan for document review. What defines that an email message is responsive? What are the privileges in the case? What information needs to be redacted for production? How are privileges asserted in a privilege log?
Lawyers who do not ask these questions could find themselves on the losing side of a motion to compel. No attorney should have a Plan A of “winging it.”
In LBBW Luxemburg S.A. v. Wells Fargo Secs. LLC, the producing party produced over 9,000 redacted static images of ESI with no claim of privilege; had a deponent assert a file existed at deposition that the attorneys claimed did not exist; and failed to produce relevant instant messages. LBBW Luxemburg S.A. v. Wells Fargo Secs. LLC (S.D.N.Y. Mar. 29, 2016, No. 12-CV-7311 (JPO) (KNF)) 2016 U.S. Dist. LEXIS 56085, at *3, 21. The Plaintiff sought all of this information and more in a motion to compel.
The Plaintiffs were not happy with thousands of redacted files being produced that the Defendants claimed were non-responsive. Common sense would dictate that irrelevant information should not be produced, opposed to fully redacted and then produced. Worse yet for the producing party, having a “non-responsive” document actually be responsive significantly undercuts the designation of non-responsive.
The Court ruled that because there was no privilege claimed by the Defendants on the 9,133 redacted documents, coupled with the fact the discovery appeared to be responsive, the Defendant was ordered to produce unredacted copies of the discovery to the Plaintiff. LBBW, at *28-29.
The Defendants also produced a redacted copy of the email from the deposition without any explanation. The Court ordered this email to be produced without redactions. LBBW, at *29.
The Defendants attempted to argue against producing instant messages by offering examples of emails produced. The Court noted the Plaintiffs had requested instant messages and not email, and accordingly ordered the production of the instant messages. LBBW, at *29-30.
Bow Tie Thoughts
There are lawyers who treat discovery review with a caviler attitude. Merely telling associates to “just get it done,” does not magically create a thoughtful workflow for review. Effective discovery review requires lawyers to focus on the proportional merits of their case. To borrow from the words of Chief Justice John Roberts from his 2015 Year-End Report on the Federal Judiciary at 7, how can we “eliminate unnecessary or wasteful discovery,” and focus on “careful and realistic assessment of actual need” during document review?
One method is to think about what ESI does the case require? If it is emails, ask for a report on the domain names and custodians within in the case from the forensic collection expert, records manager, or whoever is the keeper of the data. Emails that range from eBay to sales alerts, or hobby newsletters, are prime candidates for being irrelevant. If an email domain has 100 custodians, are all of those individuals relevant to the case? If not, don’t load the data from 90 people irrelevant people. This requires speaking with the client to determine how they communicate, who they communicate with, terms of art, date ranges, and other relevant information to focus on the merits of the case.
Planning is the first step in competent representation when it comes to eDiscovery. This includes identifying the privileges in the case, leveraging review software to create the majority, if not all, of a privilege log, and what ESI is relevant to each cause of action or defense in a case. Discovery will likely always be complicated, but leaving it an aimless task will result in chaos.
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 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.