Lessons Learned for 2024: Spotlighting Five Key eDiscovery Trends from 2023

With the New Year upon us, it is worth looking back at some of the top eDiscovery cases and trends from 2023 and exploring the lessons they offer for 2024.

1. ESI Preservation Failures from Ephemeral Messaging Apps Continue to Roil Enterprises

Case: In re Google Play Store Antitrust Litig., — F. Supp. 3d —, 2023 WL 2673109 (N.D. Cal. 2023).

Summary: The court imposed Rule 37(e)(2) sanctions against Google for failing to preserve relevant internal communications exchanged by its employees on Google Chats regarding plaintiff’s claims of anticompetitive practices relating to the Google Play Store. The court found that Google failed to take reasonable steps to preserve relevant Google Chats messages by not disabling the ephemerality feature (which Google characterizes as “history off”) associated with Google Chats that generally allows those messages to be permanently eliminated after 24 hours. Instead, Google instructed its employees on legal hold to keep relevant Google Chats messages and relied on them to individually determine whether their messages touched on relevant topics and then take measures to retain relevant messages. The court determined that such a practice was insufficient given that certain employees on legal hold did not know whether particular messages were in fact relevant to the litigation. Moreover, Google otherwise failed to take follow-up steps that would ensure those messages were actually preserved. For remedies, the court issued a permissive adverse inference instruction to the jury: “You have seen evidence that Google Chat communications were deleted with the intent to prevent their use in litigation. You may infer that the deleted Chat messages contained evidence that would have been unfavorable to Google in this case.” The jury issued a verdict in favor of plaintiff on its antitrust claims on December 11, 2023.

Lessons for 2024: Courts continue to impose harsh sanctions on parties who use ephemeral messaging applications after a duty to preserve attaches and then fail to take appropriate follow up steps to ensure relevant messages are preserved for litigation. Given this reality, lawyers should consider counseling clients to discontinue the use of ephemeral messaging apps by employee custodians on legal hold after a duty to preserve attaches. Adopting this approach to the preservation of this type of ESI is particularly important since ephemeral messaging, by its very operation, may very well deprive adversaries of relevant evidence in litigation. Moreover, there is a strong appearance of impropriety often associated with the use of these applications. Accordingly, taking actionable steps to disable the use of ephemeral messaging among custodian employees on hold may be the best way to prevent spoliation and the ensuing harm in the instant litigation and beyond.

Honorable Mention: Pable v. Chicago Transit Auth., No. 19 CV 7868, 2023 WL 2333414 (N.D. Ill. Mar. 2, 2023); United States v. Buyer, No. 22 CR. 397 (RMB), 2023 WL 6805821 (S.D.N.Y. Oct. 16, 2023).

2. Parties Continue to Struggle with ESI Protocols

Case: In re StubHub Refund Litig., No. 20-MD-02951-HSG-TSH, 2023 WL 3092972 (N.D. Cal. Apr. 25, 2023).

Summary: The court ordered defendant to make a family production of emails and hyperlinked documents referenced in those messages pursuant to the parties’ ESI protocol. The court observed that the ESI protocol provided for family productions and required the production of information linked to “internal document sources” (i.e., cloud repositories such as SharePoint, Google Drive, etc.) “as separate, attached documents” in family relationships. Further clarifying the issue, the ESI protocol specifically defined “child” documents to include “hyperlinks to internal or nonpublic documents,” along with traditional attachments. Given these circumstances, the court found defendant’s noncompliance with the ESI protocol—to which it agreed and which the court had subsequently entered as an order—improper and ordered compliance accordingly. Alternatively, the court indicated defendant could seek an order modifying the ESI protocol.

Lessons for 2024: It is apparent from case law that parties continue to struggle with many aspects of ESI protocols. There is certainly the foundational issue of whether or not parties should even enter into such a protocol. Parties may not need or even benefit from having an ESI protocol in every matter. And yet, protocols can be helpful on many levels, particularly for establishing a uniformly observed form of production and related issues. Counsel should accordingly determine whether an ESI Protocol is necessary and if so, what provisions should be included. In certain matters, a protocol that only includes provisions regarding production formats and load files may suffice while other cases might require far more detail. In addition, counsel should determine whether they need to engage experts who can advise them regarding current trends with ESI protocols. Family productions of linked documents are only one of several complex issues that may predominate ESI protocol negotiations. Other issues could include data privacy, structured data, relevance redactions, metadata fields, email threading, ESI preservation, cooperation, and search. It may be that counsel do not have the expertise to handle protocols or other aspects of eDiscovery. In that event, clients will be better served by engaging experts who can provide direction on the issues at hand and ameliorate the problems that arise when parties agree to provisions without understanding the full nature of their corresponding obligations.

Honorable Mention: LKQ Corp. v. Kia Motors Am., Inc., — F.R.D. —, 2023 WL 4365899 (N.D. Ill. 2023).

3. ESI Search Issues Continue to Bedevil the Discovery Process

Case: Garner v. Amazon.com, Inc., No. C21-0750RSL, 2023 WL 6038011 (W.D. Wash. Sept. 15, 2023).

Summary: The court in Garner ordered defendant Amazon to run 38 search queries that plaintiffs had proposed against 36 Amazon custodians. After doing so, Amazon identified a grand total of 2,036,172 documents. To facilitate its responsiveness review of the 2,036,172 documents, Amazon implemented a technology-assisted review (“TAR”) workflow. Amazon subsequently identified 2,564 responsive documents among the over 1.8 million that it reviewed using TAR. Amazon thereafter conducted elusion testing on the unreviewed 224,924 documents and failed to identify any responsive materials during its review of the null set sample (1,527 documents). In its May 19, 2023 order (2023 WL 3568055), the court acknowledged that plaintiffs may have “valid” concerns regarding the low number of responsive documents (less than .13%) that Amazon identified among the set of 2,036,172. Nevertheless, the court refused to impugn Amazon’s TAR process as the source of those concerns, finding that it was defensible given the elusion testing results. In its September 15, 2023 order, the court revisited plaintiffs’ concerns regarding the low production volume and determined that Amazon used an unreasonably limited definition of relevance in connection with its review of the 2,036,172 documents. The court reached this conclusion after Amazon divulged that it did not search for internal communications or documents regarding (among other things) the development of its Alexa product, which the court found to be inappropriate given that such information was clearly within the ambit of plaintiffs’ claims. To remedy this issue, the court gave Amazon the option of either: (1) Producing to plaintiffs within seven days the entire set of 2,036,172 documents which plaintiffs could then review; or (2) redoing its review of the 2,036,172 documents based on the court’s broader determination of relevance and producing all newly designated relevant documents within 35 days.

Lessons for 2024: ESI search issues continue to present clients, counsel, and the courts with any number of problems. The issue in Garner—the responding party adopted an unreasonably limited view of relevance—is particularly troubling. Even traditional validation measures such as elusion testing generally won’t reveal this deficiency unless the requesting party is permitted to participate in the process and review the null set sample (which courts may not allow given the likely presence of irrelevant documents in the sample). While some ESI search problems like the one in Garner can be addressed through greater cooperation and transparency, these items alone are not an elixir. Counsel often need more technical sophistication to better handle ESI search questions, along with access to experts who can offer guidance on the issues. Having greater sophistication can provide counsel with a stronger hand for both understanding and addressing questions and disputes with ESI search.

Honorable Mention: Deal Genius, LLC v. O2COOL, LLC, — F. Supp. 3d —, 2023 WL 4556759 (N.D. Ill. 2023).

4. Issues on Possession, Custody, or Control Continue to be a Moving Target

Case: Fed. Trade Comm’n v. Am. Future Sys., Inc., No. 2:20-CV-02266-JHS, 2023 WL 3559899 (E.D. Pa. Mar. 28, 2023), report and recommendation adopted as modified, 2023 WL 3559319 (E.D. Pa. May 17, 2023).

Summary: The court affirmed a special master’s recommendation that defendant American Future Systems (AFS) be ordered to produce relevant Slack messages from certain of its employee custodians that were within its possession, custody, or control. AFS had argued that it should not be compelled to produce relevant Slack messages because they were in the possession or control of Slack and not AFS. Relying on Laub v. Horbaczewski, No. CV 17-6210-JAK (KSX), 2020 WL 7978227 (C.D. Cal. Nov. 17, 2020), AFS maintained that it could not access Slack messages given the nature of its Slack account. The special master rejected these assertions, finding that AFS both owned the Slack data pursuant to its service level agreement with Slack and generally maintained control over such information. Even though a user’s access to data may depend on the type of Slack account, the special master reasoned that this was not determinative for purposes of possession, custody, or control: “Slack provides all customers with the ability to request data in certain circumstances . . . Thus, the level of Slack account—whether free (access to most recent 90 days of messages) or paid (full message history available ‘at your fingertips’)—is irrelevant to the determination of whether AFS has control over Slack data.” In addition, the special master criticized and distinguished Laub, finding that Laub failed to consider that all Slack account holders may “export data in certain legal circumstances.” Finally, the special master overruled AFS’s relevance and proportionality objections, finding that the sought-after Slack messages may be highly relevant and that AFS would not be unduly burdened by having to review and produce Slack messages from certain of its custodians.

Lessons for 2024: Discovery issues surrounding possession, custody, or control continue to be a moving target in courts around the country. On the one hand are decisions like American Future Systems and In re Pork Antitrust Litigation, No. 18-CV-1776 (JRT/HB), 2022 WL 972401 (D. Minn. Mar. 31, 2022), where courts determine possession, custody, or control based on the governing terms of contracts and policies. On the other hand are cases like Miramontes v. Peraton, Inc., No. 3:21-CV-3019-B, 2023 WL 3855603 (N.D. Tex. June 6, 2023), in which courts use a variety of criteria, particularly in the absence of agreements and policies, to reach a result on preservation and production. The lack of uniformity on this issue presents litigants with an uncertain playing field and underscores the need for organizations to prepare policies and practices that address ownership of company information and acceptable uses for corporate communications. Having effective policies and practices of this nature, while not a panacea, can facilitate a clearer determination by the court of these issues.

Honorable Mention: Miramontes v. Peraton, Inc., No. 3:21-CV-3019-B, 2023 WL 3855603 (N.D. Tex. June 6, 2023).

5. Effective Information Governance Enhances Cyber and Privacy Safeguards

Case: Ramirez v. Paradies Shops, LLC, 69 F.4th 1213 (11th Cir. 2023).

Summary: The U.S. Court of Appeals for the Eleventh Circuit partially reversed the district court’s dismissal of Ramirez’s putative class action claims against Paradies Shops that seek damages arising from Paradies’s alleged failure to take appropriate steps to safeguard personally identifiable information (PII) belonging to Ramirez and Paradies’s other current and former employees. The 11th Circuit found that Ramirez had stated a tort claim of negligence under Georgia law since Ramirez had adequately pleaded the existence of a special relationship between Ramirez (and similarly situated current and former employees) and Paradies, together with “a foreseeable risk of harm” that arose from that relationship. The 11th Circuit agreed with Ramirez that the data breach that Paradies suffered—a ransomware attack—was, as pleaded, reasonably foreseeable given Paradies’s alleged failure to implement “adequate security measures despite industry warnings and advice on how to prevent and detect ransomware attacks.” In reaching this determination, the court factored in the “size and sophistication” of the company—an enterprise with over 10,000 employees and more than $1 billion in revenue—in concluding that Paradies “could have foreseen being the target of a cyberattack.”

Lessons for 2024: The Ramirez suit will be one to watch regarding whether employees—both individually and as a class—can seek relief from their employers for failing to take adequate measures to safeguard their PII. Ramirez is not the only case where courts have allowed these claims to go forward, but it is particularly noteworthy given that a prominent appellate court permitted this suit to proceed. In the meantime, organizations would be well served to assess their preparedness on information security and privacy and begin taking steps to address vulnerabilities on these fronts.

Honorable Mention: Rodriguez v. Mena Hosp. Comm’n, No. 2:23-CV-2002, 2023 WL 7198441 (W.D. Ark. Nov. 1, 2023).

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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.