Orange You Glad for Proportionality?

In a discovery dispute over labeling representations of orange juice products, the Plaintiffs sought the production of the ESI custodial files of each witness Defendant Coca-Cola planned to call as a witness. The case is an example of how judges are teaching the world to sing about proportionality. So sit back, pour yourself a refreshing glass of Rule 26(b)(1), and enjoy the legal analysis.

The Plaintiffs claimed that the Defendant withholding the ESI was prejudicial, especially considering the Defendant took the position they could introduce any evidence from any witness at trial. In re Simply Orange Juice Mktg. & Sales Practices Litig., 2018 U.S. Dist. LEXIS 10383, at *10-11 (W.D. Mo. Jan. 23, 2018).

The Defendant claimed the withheld ESI would only be used for impeachment. Moreover, the Defendant claimed the Plaintiffs failed to prove that the ESI was relevant to any of the claims in the lawsuit. As such, the Plaintiffs did not meet the burden to compel the production of witness emails and hard drives.

The Court agreed with the Defendant…for now. US District Judge Fernando J. Gaitan, Jr. explained that the burden and expense of producing emails and data from hard drives would outweigh its likely benefits. However, if the Plaintiffs could demonstrate there was prejudice from the withheld evidence during trial, the Court would allow a trial recess if the discovery was necessary for the trial.

Bow Tie Thoughts

Electronically stored information that supports a party’s claims or defenses must be disclosed under Federal Rule of Civil Procedure Rule 26(a). ESI that is withheld cannot be used, unless it is only for impeachment. Cases like this are legally correct, but there is an ugly challenge where a requesting party has to prove the relevance of ESI they have not seen. Moreover, if a party is banking on only using ESI for impeachment, why risk having it excluded for a failure to disclose if the ESI is not needed for impeachment? If it is relevant for impeachment, wouldn’t it also be relevant to a party’s claims and defenses?

The answer…is maybe. Perhaps the ESI has no relevance to the claims of the lawsuit, but could be used to attack the veracity for truthfulness of a witness on cross-examination under Fed Rules Evid R 608(b), which would be effective impeachment at trial.

Proportionality analysis is often the quest for Discovery Zero, seeking information that is low in cost and relevant to the claims of the case. The Court made the right call in not ordering the production of ESI in its short cost-benefit analysis. However, one would hope that determining whether ESI was necessary for the case would be learned at a deposition and not at trial.

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.