Rocket ships are fun. Disputes over settlement payments that result in an insured suing their insurance company are less fun.
The discovery dispute focused on the insurance carrier and its collection of the reimbursement requests. The Plaintiff sought discovery related to its bad faith claims, which the Defendants objected to as being protected by the attorney-client privilege.
The Court granted a motion to reopen limited discovery over the reasonableness and adequacy of the claims invested by the Defense law firm. The Defendants brought a motion for a protective order after the Plaintiff sought a Rule 30(b)(6) deposition that included, among other topics, the “method and manner used” to identify the documents produced in discovery, that included the “identification of relevant custodians, sources of data, databases, keywords, search terms, predictive coding or any other technology assisted review.” Aerojet Rocketydyne, Inc. v. Global Aero., Inc., 2002 U.S. Dist. LEXIS 53794 * 14 (March 23, 2022).
U.S. Magistrate Judge Allison Claire denied the motion for a protective order. Judge Claire explained the topic was appropriate for records custodians, because the 30(b)(6) topic sought how the law firm determined which documents would be produced in response to discovery requests, who was responsible for identifying such documents, and what training these individuals received to identify responsive documents. Aerojet, at *16.
Bow Tie Thoughts
The collection and identification of responsive ESI and documents requires understanding the claims of the lawsuit, the nature of information sought in requests for production, and how the client maintains, stores, and uses electronically stored information. There are a lot of moving pieces. Many law firms retain computer forensic experts for collecting data from clients to ensure there is a chain of custody that documents how the data was collected. Some of the medium and larger size companies have dedicated professionals in-house for collecting data. All of this is to ensure that that data is defensibily collected, but also that lawyers don’t end up being deposed over how data was collected.
Questioning how ESI and documents were identified for production raises Saturn Rocket size work product issues. There have been fights over whether the development of search terms is work product or not. If lawyers end up testifying, there must be care in explaining what was done so attorney-client communications and work product are not disclosed. Alternatively, if the process is more academic, explaining what search terms were used in what kind of review application, how technology assisted review was applied to the data, and what was produced, all sound like topics that are fair game if there are product gaps and other missing records that should be in a production.