Analyzing the 3rd Quarter of eDiscovery Case Law 2023

As eDiscovery evolves, legal professionals must stay updated on the latest eDiscovery case law and developments. The 3rd quarter of 2023 has seen several noteworthy cases that continue to shape the landscape of discovery. In this blog post, we will delve into the key highlights and insights from the notable cases and events that have unfolded from July to September 2023.

No Dodging TAR: Motion to Prevent TAR Rejected

Garner v., Inc. was all about the battle over using Technology-Assisted Review in the discovery process. Imagine a courtroom showdown in the U.S. District Court for the Western District of Washington. The plaintiffs were shaking their fists, accusing Amazon’s digital assistant of shady data collection practices, and crying foul play. On the other side, Amazon wanted to use TAR to sift through the digital haystack and find the relevant needles.

Now, Judge Robert S. Lasnik stepped into this eDiscovery arena. He’s the referee in this tech wrestling match. The plaintiffs wanted to ban Amazon from using TAR, but Judge Lasnik wasn’t having it. He said, Hold on, folks. “TAR is a reasonable option here for locating or filtering” all that electronically stored information. TAR was the champion in this legal tech showdown.

But there was a twist. The producing party, Amazon, had to lay its tech plans on the table first. It’s like Amazon was showing its playbook to the other team. Then, both sides could have a pow-wow with their tech experts and work out a game plan. Sounds fair, right?

However, the plot thickened. The plaintiffs didn’t want to play by these rules. They said, we don’t want TAR. We don’t even want to talk about it. Judge Lasnik wasn’t impressed with that move. He pointed out that the court had already given the green light for tech-aided methods. Search terms alone weren’t a deal-breaker, and the plaintiffs had to admit that Amazon could review the two million documents. They just didn’t like the idea of “predictive coding” and other tech tools doing the heavy lifting.

In the end, Judge Lasnik ruled in favor of Amazon, saying: TAR stays.

This is a notable example of where the plaintiffs couldn’t just skip the tech discussion.

It’s like we say: You can’t dodge the technology in this high-stakes eDiscovery game.

Hand Over the Goods: Production Order of Non-Hit “Elusion” Testing Documents

In Deal Genius, LLC v. O2COOL, LLC, we had a patent infringement battle over a neck-worn portable cooling fan device. Picture this: both parties were at each other’s throats over email production. The question was, did the plaintiff produce all the emails they should’ve?

To sort out this mess, Special Master Philip J. Favro stepped in as the referee. He’s like the eDiscovery judge who ensures everything goes by the rules. First, he worked with the parties to make a deal. They agreed that the plaintiff had to redo some of its production and conduct elusion testing.

Now, what’s elusion testing, you might ask? It’s a quality check on steroids. The producing party, in this case, the plaintiff, has to review a random sample of documents that didn’t match any search terms. These are the documents they thought were not relevant. They run a test with a statistical confidence level of 95%, a margin of error of 2%, usually around 1,000 to 2,400 documents. If they find something relevant, they produce it. It’s like saying, Let’s test and see if anything important was missed.

The problem was the plaintiff’s first attempt at elusion testing possibly missed the mark. They reviewed nearly 2,400 documents and found just two relevant ones. Not great odds. Then, the defendant asked them to run another search, and this time, they found 28 more documents they deemed relevant. But it didn’t stop there. A second search revealed 18 more documents, and the plaintiff didn’t want to share these with the defendant.

Special Master Favro wasn’t buying it. He thought there were questions about the reliability of the plaintiff’s elusion testing. He pointed out that the initial sample missed the 28 documents found in the second search, making that .08% elusion rate look misleading.

In the end, he ruled that the 18 documents had to be produced. He said it was about relevance and proportionality under Rule 26(b)(1), and producing these documents was fair game.

This is a notable example of where the elusion testing was the name of the game, and the plaintiff had to hand over those 18 documents.

It’s like we say: Sorry, just hand over the goods.

Comb the Desert: To Expedite Imaging or Not, Good Cause Goes a Long Way

Ainstein AI, Inc. v. ADAC Plastics, Inc. was a legal tech thriller set in the District of Kansas. The plot? A high-stakes battle over trade secrets and unfair competition involving a joint venture. Four of the defendant’s employees were accused of downloading tens of thousands of documents, which were supposed to be trade secrets, from a Google Drive. It’s like the Wild West of data theft.

The plaintiff wasn’t messing around. They wanted to get their hands on the proof pronto. They asked for “forensic imaging” of various computers, storage devices, and even personal cell phones. They argued that forensic imaging was the only way to check if these pilfered files had been tampered with or used in any way. They were kind of saying, “We need to see if they left any fingerprints on the goods.”

But the defendant wasn’t having it. They said they were doing everything by the book, following all the rules and preservation obligations.

Now, here’s where the judge, U.S. Magistrate Judge Teresa J. James, comes in. She had to decide if there was “good cause” for this speedy forensic imaging. She thought about it and decided yes, there was good cause for the work computers and storage devices. Why? Because these devices held the key to understanding whether the defendant misappropriated the trade secrets. Plus, she didn’t want to risk important data getting wiped out because once it’s gone, it’s gone.

But when it came to personal cell phones, she put her foot down. She said the plaintiff didn’t prove there was a unique benefit to imaging these phones. She also thought it was a bit much, given that personal cell phones usually contain a ton of irrelevant personal data that has nothing to do with the lawsuit. She said what we all think: We don’t need to dig through someone’s entire life to find a few possible items.

And she raised questions about whether these personal cell phones were even within the defendant’s control.

This is a notable example of a broad request: here the judge said yes to imaging some devices but gave a big no to personal cell phones.

It’s like we say: We’ll search for the treasure, but we’re not combing through the entire desert.

No Shortcuts – Its Review Time

The matter of McCormick & Co., Inc. v. Ryder Integrated Logistics, Inc. was a classic dispute over how to handle electronic documents. It’s a digital puzzle – how do you review and produce this sea of data efficiently and fairly?

Here’s the backdrop: The parties in this case had competing claims related to a breach of contract. They had a plan in place, an ESI protocol, that they’d agreed upon. The protocol stated that if a document was captured by using the agreed search terms and methodology, it didn’t automatically mean it was relevant or had to be produced. In other words, not everything that’s caught in the net is a keeper.

But as often happens in the world of legal battles, a disagreement arose. The question on the table was whether they needed to do a manual, page-by-page review of the documents before producing them, to filter the search set down to matter relevant documents. The plaintiff said no, the ESI protocol didn’t require it. The defendant said yes, they should manually review the documents, and the special master assigned to resolve this dispute agreed with the defendant.

Now, it was up to Chief Judge James K. Bredar to make the final call. He dove into the ESI protocol, and it all hinged on the language in there. The protocol mentioned that a party’s obligation to conduct a reasonable search would be deemed satisfied by reviewing documents captured using the agreed methodology. The key phrase here – “by reviewing documents.” In Judge Bredar’s eyes, this meant a manual page-by-page review was indeed required.

The plaintiff argued that they could rely on search terms alone and skip the manual review, but Judge Bredar wasn’t buying it. He pointed to the language in the protocol that mentioned “reviewing documents” and concluded that a manual review was the way to go.

The plaintiff also raised the issue of cost, saying the estimated $240,000 for the manual review wasn’t proportionate to the case, which involved a $4 million claim. Judge Bredar considered this but ultimately sided with the special master.

This is a notable example of where search terms weren’t enough: here the judge said yes to filtering using search terms, but no to blindly handing over the results.

It’s like we say: No shortcuts – It’s review time, let’s dig into each document and get this case sorted.