Lessons in Reasonable Preservation of Electronically Stored Information

Determining the scope of discovery is of critical importance for defining a party’s duty to preserve duty. Parties legitimately can fight over whether one party’s preservation strategy is too narrow. Magistrate Judge Erin Wilder-Doomes decided this issue in a securities and unfair trade practices case in Louisiana arising from a $100 million investment loss. The opinion provides an excellent summary of the law on how to challenge whether a party sufficiently collected relevant electronically stored information. Firefighters’ Ret. Sys. v. Citco Grp. Ltd., 2018 U.S. Dist. LEXIS 594 (M.D. La. Jan. 3, 2018).

Preservation of electronically stored information is one of the topics that should be discussed early in a case while the parties are making their discovery plan. See, FRCP 26(f)(3)(C). Moreover, the Advisory Committee Notes to the 2006 Amendments explain that Rule 26(f) was “amended to direct the parties to discuss discovery of electronically stored information during their discovery-planning conference” and noting that the parties “may identify the various sources of such information within a party’s control that should be searched for electronically stored information.”

The parties agreed to 56 search terms and 21 document custodians. For reasons that were not explained, the Plaintiff thought the Defendants’ search of the 21 custodians was too narrow. The Plaintiffs sought a court order to allow them to email everyone employed by the Defendant to ask employees who had relevant information to the litigation, and thus require the Defendants to conduct additional electronic and hard copy searches. Firefighters’ Ret. Sys., at *18-20.

The Court rejected this argument, explaining it was unreasonably to put the Defendants back to “square one” in discovery. Moreover, the Defendants were willing to conduct additional searches. However, that begged the question on why the Plaintiffs were unable to explain the claim the Defendants had engaged in an unreasonable search. Firefighters’ Ret. Sys., at *21.

As the Court explained, a responding party is entitled to identify custodians most likely to have responsive information. Firefighters’ Ret. Sys., at *17, citing Mortgage Resolution Servicing, LLC v. JPMorgan Chase Bank, N.A., 2017 U.S. Dist. LEXIS 78217, at * 2 (S.D.N.Y. May 18, 2017). The Court further quoted from Mortgage Resolution Servicing, LLC:

“Unless that choice is manifestly unreasonable or the requesting party demonstrates that the resulting production is deficient, the court should play no role in dictating the design of the search, whether in choosing search tools, selecting search terms, or…designating custodians.” Further, “a party seeking to compel another party to search the files of additional custodians bears the burden of establishing the relevance of the documents it seeks from those custodians.”

Firefighters’ Ret. Sys., at *17, citing Mortgage Resolution Servicing, at *2, quoting Lightsquared Inc. v. Deere & Co., 2015 U.S. Dist. LEXIS 166403 at *5 (S.D.N.Y. Dec. 10, 2015)).

Here is the big lesson for a requesting party challenging whether a search was adequate: have evidence that the responding party failed to conduct a reasonable search. Firefighters’ Ret. Sys., at *18.

Responding parties have no obligation to examine “every scrap of paper” and “courts cannot and do not expect that any party can meet a standard of perfection.” Firefighters’ Ret. Sys., at *21 [citations omitted].

Judge Wilder-Doomes likened the Plaintiff’s motion to “somehow ensure” all responsive discovery, regardless of information being cumulative or burdensome, to be produced. Firefighters’ Ret. Sys., at *21-22. The problem with this position was the Plaintiff did not demonstrate the Defendants’ searches were unreasonable. As such, the motion was denied.

Bow Tie Thoughts

The preservation of electronically stored information is the one of the most important steps in any lawsuit. While each party is in the best position to determine what should be searched, it is wise to meet and confer with the opposing party to determine the scope of the case. This can include date ranges, relevant custodians, and subject matter for searches.

I wrote a white paper on the preservation of electronically stored information on collecting data from disparate data sources for Onna entitled Defensible and Proportional Precision Collection. The white paper is available for download, which discusses executing litigation holds with preservation and proportionality using artificial intelligence. For more information on the white paper, please visit Onna.

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.