Keeping Your Cards Close to Your Chest – Not so for ESI Search Methodology
The Sedona Principles clearly state that “[l]awyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner.” Sedona Conference Cooperation Proclamation (2008). The Federal Rules (in particular FRCP 26) support the spirit of cooperation to identify and fulfill legitimate discovery needs. In federal court, judges may find it unacceptable for one party to search electronically stored information (ESI) with terms not agreed upon by the other party.
What happens when one side doesn’t do an appropriate or adequate job in the ESI discovery process? This is an absolutely appropriate time to seek court intervention and, possibly, sanctions. In November 2021, Judge Bettlestone of the Eastern District of Pennsylvania issued a discovery decision allowing for sanctions for Defendants’ inadequate discovery methods. In Vasoli v. Yards Brewing Company, Defendants independently chose search terms and time periods for its ESI searching in the lawsuit. A party employee deposition revealed that there was a critical email communication that was not produced in discovery. After the deposition, Defendants produced the email. This naturally prompted Plaintiff’s concerns about their opponents’ ESI searching methods. The judge held a discovery conference call and it became clear that Defendant’s searching techniques had some holes. After that call, Defendant sought to cure its shortcomings by conducting an additional ESI search with Plaintiff’s name within two company custodial accounts. This resulted in an additional 841 pages of emails and it begged the question of why such a straightforward search wasn’t previously used for these custodians.
As a sanction, the judge considered ordering a Rule 30(b)(6) deposition of the person familiar with how the searches had been conducted. Defendant protested, claiming attorney-client privilege and the attorney work-product doctrine related to its ESI search methodology and decisions. The court rejected both arguments, stating in part that “neither the privilege nor the doctrine, however protects facts from disclosure.” Vasoli at *2 (citations omitted). Therefore, a factual description of what counsel did will not necessarily require the disclosure of confidential client communications. Also, the practical steps taken by the attorney to identify responsive documents do not necessarily encroach on the thought processes of counsel. Therefore, the steps that the party took to search for and produce relevant documents were discoverable and the judge imposed, as a sanction, a 30(b)(6) deposition into Defendant’s discovery processes.
You have a professional responsibility to produce responsive documents relevant to a party’s claim or defense and proportional to the needs of the case. FRCP 26(b)(1).
There are cases where the negotiation and agreement of an ESI protocol is more appropriate than others. There are pros and cons to each methodology (to be discussed in a future blog).
Be wary that your ESI discovery processes are likely not protected by either the attorney-client or work product doctrine protections.