Lessons Learned for 2022: Spotlighting Five eDiscovery Trends from 2021

With the New Year upon us, it is worth looking back at some of the top eDiscovery cases and trends from 2021 and exploring the lessons they offer going forward in 2022.

1. Frame the Issues with an Effective Preservation Demand Letter 

CasesGomez v. Metro. Gov’t of Nashville, 2021 WL 3406687 (M.D. Tenn. Aug. 4, 2021); Peals v. QuikTrip Corp., 2021 WL 2043185 (E.D. Tex. May 21, 2021).

SummaryIn Gomez v. Metro. Gov’t of Nashville, the court issued an evidence preclusion sanction and other measures pursuant to FRCP 37(e)(1) against defendant after determining that defendant failed to take reasonable steps to preserve relevant emails relating to a disparaging message plaintiff received from another of defendant’s employees (Smith). Defendant had ample opportunity to anticipate that litigation was forthcoming—and thereby place relevant emails on hold—by (among other things) the narrow preservation demand letter plaintiff’s counsel sent, instructing that defendant keep messages found on Smith’s “computer.” In contrast, the broad preservation demand letter that plaintiff sent in Pealsv. QuikTrip Corp did not require defendant to preserve anything beyond 30 minutes of video footage memorializing plaintiff’s slip and fall.

Lessons for 2022:Preservation demand letters that delineate reasonable requests to preserve relevant information and tie those requests back to the client’s claims or defenses can provide the court with a roadmap for issuing orders compelling production of that information. Moreover, just like in Gomez, well-articulated letters can also set the stage for sanctions motion practice against parties who fail to preserve relevant information. In contrast, overreaching letters that include overly broad preservation demands inevitably undermine both the client’s efforts to obtain particular evidence and counsel’s credibility. As Peals demonstrates, opposing counsel generally ignore overly broad preservation demands that are not linked to specific factual allegations and courts may also disregard them.

Honorable Mention:Brown v. Starwood Hotels & Resorts Worldwide, Inc., 2021 WL 5351756 (Cal. Ct. App. Nov. 17, 2021).

2. Conduct a Reasonable Inquiry of Relevant Sources of ESI

Case:State Farm Mutual Auto. Ins. Co. v. Max Rehab Physical Therapy, LLC, 2021 WL 2843832 (E.D. Mich. June 28, 2021), report and recommendation adopted, 2021 WL 3930133 (E.D. Mich. Sep. 2, 2021).

SummaryThe court in State Farm Mutual found that counsel for defendants did not undertake a reasonable inquiry to determine whether relevant, responsive documents were produced in discovery. Even though defendants had produced only 39 documents from 12 email accounts, counsel acknowledged that he simply accepted—without further inquiry—defendants’ representations that “they had searched those accounts and found no business or patient related emails.” Citing DR Distributors LLC v. 21 Century Smoking, Inc., 513 F.Supp.3d 839 (N.D. Ill. 2021), the court reasoned that counsel should have searched those accounts himself rather than wholly relying on defendants’ representations.

Lessons for 2022: With the legal profession having over 15 years of education on ESI discovery, it should now be self-evident that counsel must undertake a reasonable investigation of the evidence supporting a party’s claims or defenses. Nevertheless, eDiscovery caw law from 2021—including State Farm Mutual—is rife with decisions reflecting that many lawyers lack proficiency in ESI basics and best practices. To reverse this trend, attorneys should learn to take charge of the discovery process and more readily ensure that relevant information is brought into the discovery process and safely accounted for in litigation. This includes obtaining an understanding of client information and communication systems that could have relevant information. While doing so may involve learning complex technical details, counsel should nonetheless do so or engage eDiscovery counsel or expert consultants to advise them. Doing so will strengthen counsel’s hand in dealing with the client, litigation adversaries, and the court on these issues.

Honorable Mention:Axis Ins. Co. v. Am. Specialty Ins. & Risk Servs., Inc., 2021 WL 2910814 (N.D. Ind. July 12, 2021); Doe v. Purdue Univ., 2021 WL 2767405 (S.D. Ind. July 2, 2021).

3. Apply Every Proportionality Factor under FRCP 26(b)(1)

CaseWeidman v. Ford Motor Co., 2021 WL 2349400 (E.D. Mich. June 9, 2021).

SummaryThe court in Weidman held that the searches plaintiffs proposed were not proportional to the needs of the case. Observing that many lawyers “gloss over the operative rules requiring an assessment of proportionality,” the court found that plaintiffs “note[d] the proportionality factors but only briefly address[ed] them.” While the searches at issue may have yielded relevant information, the court was unconvinced they would uncover documents beyond those that defendant already produced. Because the burden on defendant to conduct such a search outweighed any likely benefit plaintiffs might obtain from the requested searches, the court denied plaintiffs’ motion to compel.

Lessons for 2022:Weidman highlights that proportionality is more than just a platitude that parties can perfunctorily mention and then expect to have courts accede to their demands. Instead, Weidman and related cases from 2021 teach that parties must analyze every proportionality factor—during a meet and confer and in motion practice—and establish why the requested discovery either satisfies or falls short of FRCP 26(b)(1) proportionality standards. As Weidman and other cases make clear, discovery requests and responses must satisfy notions of proportionality.

Honorable MentionLamaute v. Power, 339 F.R.D. 29, 2021 WL 1978971 (D.D.C. May 18, 2021); Velez v. City of Chicago, 2021 WL 1978364 (N.D. Ill. May 17, 2021).

4. Discovery from Databases Requires Disclosure of Key Details

CaseUnited States v. Holmes, 2021 WL 3395146 (N.D. Cal. Aug. 4, 2021).

SummaryIn the criminal prosecution of entrepreneur Elizabeth Holmes, the court found that Holmes was responsible for the loss of key evidence from a bespoke database belonging to her defunct company, Theranos. While Holmes provided the government with login credentials to access the database, the court determined that an encryption key, which Holmes failed to disclose or provide, was required to access the database. These circumstances, together with Theranos’s subsequent retirement of the database and deletion of the encryption key, led the court to conclude that it was Holmes (and not the government) who was responsible for the loss of the database materials.

Lessons for 2022: Structured data is an increasingly important source of relevant information in discovery. Found in standalone or relational databases, or other complex repositories, the discovery of structured data requires far more than just a broadly worded FRCP 34 “produce all documents” request. Instead, parties should meet and confer to understand the nature of the databases at issue and resolve issues surrounding access to information housed in databases. In addition, they should engage their respective structured data experts who can help fashion reasonable search queries and determine the appropriate export format from the structured database for production.

Honorable Mention:TIGI Linea Corp. v. Pro. Prod. Grp., LLC, 2021 WL 1947341 (E.D. Tex. May 14, 2021).

5. Some Technology-Assisted Review (TAR) Workflows May Need More Comprehensive Validation Measures

CaseIn re Diisocyanates Antitrust Litig., 2021 WL 4295729 (W.D. Pa. Aug. 27, 2021), report and recommendation adopted, 2021 WL 4295719 (W.D. Pa. Sep. 21, 2021).

SummaryIn a Multi-District Litigation in which the parties advanced competing proposals for using TAR to handle the identification of relevant information in response to plaintiffs’ discovery requests, special master James C. Francis, IV (ret.) determined that defendants’ position on validation was not reasonable under the circumstances. Judge Francis determined that defendants’ approach—general elusion testing at the end of the TAR process—was underinclusive. While pure quantitative TAR elusion testing might be adequate in some circumstances, Judge Francis observed that the TAR 2.0 process offers a more granular and qualitative evaluation of relevant documents to determine when the review process should end. In addition, Judge Francis found that defendants’ initial proposal to measure recall based only on the documents processed using TAR was too limited and did not account for other responsive documents that may have been inadvertently excluded at earlier stages of culling. Nevertheless, Judge Francis did not suggest that the court adopt plaintiffs’ rival protocol, finding that it went “beyond what the law requires in at least some respects” and that defendants could still develop a reasonable TAR protocol. The court subsequently adopted Judge Francis’s report and recommendation, rejected plaintiffs’ assertion that their TAR protocol should be adopted, and allowed defendants to proceed with the search and identification process based on a revised version of their TAR protocol.

Lessons for 2021:TAR workflows have become increasingly complex in recent years as data sets have grown and the cases in which TAR is used have increased in value and complexity. With these advances in TAR workflows, there is a greater need for parties to engage experts who have both the legal and technical savvy to design workflows, negotiate protocols, and provide expert testimony on process and defensibility. As Diisocyanates makes clear, having TAR experts who understand technology, process, and defensibility will undoubtedly improve the results of any TAR workflow.

Honorable Mention:Zhulinska v. Niyazov Law Group, P.C., No. 21-CV-1348 (CBA), 2021 WL 5281115 (E.D.N.Y. Nov. 12, 2021).

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Written by: Philip Favro

Philip Favro is a leading expert on issues relating to electronically stored information. Phil serves as a court-appointed special master, expert witness, and trusted advisor to law firms and organizations on matters involving ESI and electronic discovery. He is a nationally recognized scholar on electronic discovery, with courts and academic journals citing his articles. Phil also regularly provides training to judges on electronic discovery and ESI. He is a licensed attorney who in private practice represented organizations and individuals in litigation across the spectrum of business disputes. In addition to handling a range of complex and other discovery issues, Phil has extensive experience in the courtroom including summary judgment, preliminary injunction, and discovery motion practice, together with trial and arbitration experience.

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