Electronically Stored Information has progressed beyond email messages in lawsuits. In a multi-vehicle accident involving a UPS truck, the Plaintiff sought ESI including daily reports of the driver. These reports were listed in an interrogatory response and the Plaintiff claimed the Defendant had a duty to preserve them. Merriweather v. UPS, 2018 U.S. Dist. LEXIS 124383, at *22-23 (W.D. Ky. July 25, 2018).
The Defendant responded they had no responsive information or a duty to preserve the daily reports at the time of the accident. The Defendant had preserved the audit logs for the seven days before the accident and on the date of the accident. The Defendant effectively explained they did not preserve the daily reports because the driver had no hour violations covering the scope of discovery. Moreover, there was no evidence of negligence or that service hours were at issue. Furthermore, the driver was rarely, if ever, within the 13 hours of the allotted hours of service time, or else an alert would have come up on the daily reports. Merriweather, at *23-24.
Parties responding to discovery requests must make a reasonable inquiry to find responsive information. If there is no responsive discovery, the responding party must show with sufficient specificity to allow a court to determine whether the responding party made a reasonable inquiry and exercised due diligence. Merriweather, at *22.
The Court found that the Defendant had stated with “sufficient specificity” that it conducted a reasonable inquiry and exercised due diligence in searching for and explaining why it does not have Defendant Semmler’s daily reports pursuant to Fed. R. Civ. P. 26(g)(1).
Bow Tie Thoughts
There are multiple ways to demonstrate “sufficient specificity.” They all require having a work flow that can be documented. The first step is showing that relevant data was collected. This could be done with a forensic report that shows what data was collected and from what sources. This could be as expansive as listing work computers, exchange servers, personal computers, and personal email. It would depend on the nature of the case. Regardless of the number of sources that have to be searched, a documented process could help a court determine that a reasonable inquiry was conducted by a responding party.
The second step in showing “sufficient specificity” is with responding to discovery requests. Search term efficiency reports can be used to show the number of hits to specific terms. Another strategy is to show what searches were constructed for specific requests for production, the number of hits to those searches, and the final production. This could be exported as a report from many review applications on the market.
The name of the game is to show a party acted reasonably and that a Court can understand what was done. This can take many forms, so make sure there is a documented process that can be stated in a declaration if ever challenged with supporting reports.
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.