Rule 26(f) requires parties to discuss the preservation of electronically stored information during the meet and confer process. If we think of the meet and confer like the Staff of Ra in Raiders of the Lost Ark in identifying what needs to be preserved, the parties went digging for a discovery dispute in the wrong place in Impact Engine, Inc. v Google. Instead of providing the Court a proposed discovery order, the parties instead presented dueling discovery motions. Impact engines, Inc. v Google LLC, 2020 U.S. Dist. LEXIS 70534 (S.D. Cal., Oct. 20, 2020).
The Plaintiff asked the Court to order the Defendant to preserve instant messaging applications that were used for communicating over the subject matter of the lawsuit. The Defendants [naturally] claimed the burden to preserve chat messages was not proportional to the needs of the case. Impact Engine, at *2.
The Court recognized the parties’ positions accordingly as, 1) the Plaintiff wanted a preservation order; and 2) the Defendants a protective order. The problem here was the parties were supposed to prepare a Proposed ESI Order, not a fight over proportional preservation. The Court DENIED both motions, stating that neither party adequately addressed the merits of their motions. Impact Engine, at *3-4.
The dispute did not end there. The parties further disagreed over the no longer used Model Order Governing Discovery of ESI. The parties disagreed over the number of custodians and search terms for each custodian to be used in searched. Impact Engine, at *4.
The Court explained that the District no longer used the “Model Order” and that Federal Rule of Procedure Rule 34 governs requests for production. Moreover, the Court expressly stated, “The Model Order for ESI…was contrary to the ordinary progress of civil discovery in federal courts.” Impact Engine, at *5. The Court went on to state:
The parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information. The parties should seek to reach agreement regarding production of electronically stored information. Moreover, the world of electronic discovery has moved well beyond search terms. While search terms have their place, they may not be suited to all productions. Search terms are now disfavored in many cases due to the rapid advancement of technology and software tools, rendering the ESI Model Order’s reliance on search terms obsolete.
Impact Engine, at 5-6, citing Order on Joint Motion for Determination of Discovery Dispute Regarding ESI at 4, Nuvasive, Inc. v. Alphatec Holdings, Inc., et al., No. 18-cv-0347 (S.D. Cal. Argued Oct. 7, 2019) (No. 198); See also Moore v. Publicis Groupe, 287 F.R.D. 182, 189-91 (S.D.N.Y. 2012).
The Court refused to decide the number of custodians and search terms per custodian for a discovery order. Judge Skomal stated, “…[T]he Plaintiff must request information, regardless of how or where it is maintained by Defendants, which Defendants must address as required by Rule 34, and vice versa. That is discovery: a party requests information and the burden is on the producing party to locate and produce it or object legitimately to production.” Impact Engine, at 7.
Bow Tie Thoughts
I never liked Judge Raider’s “Model Order.” It was founded on false logic: Control discovery costs by limiting search options. That is like saying the best way to control legal fees is to blind the lawyers so they can’t read. It was just wrong.
Discovery requires forethought and planning. The tools to find relevant ESI have evolved passed search terms, even though they are a useful starting point. The issue is what is this case about? What do you need to tell your client’s story? What is the timeline of events? Who are the key players? Lawyers should use the right tools to represent their clients to answer these questions, not limit their options for competently practicing law.