This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:

  1. a decision from the U.S. District Court for the District of Columbia rejecting a plaintiff’s argument in connection with a motion to compel that the clawback procedures of Federal Rule of Evidence 502(d) reduced the burden and expense for the defendant to respond to discovery requests because the defendant could forego a document-by-document review to find and withhold privileged material
  2. an opinion from the U.S. District Court for the Northern District of California sanctioning a defendant’s former outside counsel for failing to adequately supervise the defendant’s discovery responses
  3. a ruling from the U.S. District Court for the Eastern District of Pennsylvania finding that a defendant had fulfilled its obligations under Federal Rule of Civil Procedure 34 by producing documents as kept in the ordinary course of business and that the defendant had no obligation to correlate its document production to the plaintiff’s specific requests
  4. a decision from the U.S. District Court for the Eastern District of Louisiana denying the plaintiffs’ motion to compel discovery responses because the plaintiffs had failed to satisfy their obligation to confer or attempt to confer in good faith in an effort to resolve the discovery dispute before bringing the motion to compel

1. A decision from the U.S. District Court for the District of Columbia rejecting a plaintiff’s argument in connection with a motion to compel that the clawback procedures of Federal Rule of Evidence 502(d) reduced the burden and expense for the defendant to respond to discovery requests because the defendant could forego a document-by-document review to find and withhold privileged material.

In United States Equal Employment Opportunity Comm’n v. The George Washington Univ., 2020 WL 3489478 (D.D.C. Jun. 26, 2020), Magistrate Judge G. Michael Harvey concluded that the Plaintiff could not rely on the clawback procedures of Federal Rule of Evidence 502(d) to argue that the Defendant’s burden to respond to discovery requests would be reduced if it replaced a document-by-document review with a less-reliable keyword search review to determine which of thousands of emails in the review set were privileged. 

In this case, Plaintiff the U.S. Equal Employment Opportunity Commission alleged that George Washington University violated the Equal Pay Act and Title VII of the Civil Rights Act when it subjected the athletic director’s female executive assistant to less favorable treatment and to lower pay than her male counterpart. Id. at *1. During document discovery, Plaintiff requested, among other things, all emails, both sent and received, from the school email accounts of the athletic director, the female assistant, and the male assistant during each person’s tenure in the athletic department. Id. at *2. These requests were intended to allow Plaintiff to compare the female and male assistants’ job duties and assist it in uncovering evidence of the athletic director’s bias in favor of male employees. Plaintiff also requested production of all documents containing complaints against the athletic director for discriminatory behavior.

In the resulting discovery dispute over these requests, the primary controversy between the parties was whether Plaintiff’s requests were proportional to the needs of the case. Id. at *5. Defendant objected to each request for production, arguing that the breadth of the information requested was disproportionate to the needs of the case and that the cost of production would be too burdensome. Id. at *3. In this context, Defendant supported its argument regarding the burden and expense of the requested discovery by submitting estimates regarding the costs to review the number of emails at issue, including by contract attorneys and outside counsel, to establish how much Defendant would actually pay to respond. Id. at 7. Plaintiff disputed Defendant’s estimated costs to review the documents requested, contending that a cheaper procedure than a full document-by-document review was available. Id. at *8. Under Plaintiff’s proposed procedure, Defendant’s contract attorneys or outside counsel “would use filtering and targeted searches” to identify privileged emails. Only the targeted emails would go to Defendant’s attorneys for a document-by-document review. All other emails not identified by the keyword searches would be produced to Plaintiff without review.

Defendant rejected Plaintiff’s proposal to use Rule 502(d) as a means to reduce the burden of reviewing the requested discovery, arguing that it “would likely result both in privileged material being produced ... and in non-privileged material being withheld.” Id. at *8. In response, Plaintiff argued that Rule 502(d) mitigated any concerns regarding disclosure of confidential information. Specifically, Rule 502(d) allows courts to enter an order stating that “privilege or protection is not waived by disclosure connected with litigation pending before the court.” Id. (quoting Rule 502(d)). Plaintiff argued that Rule “502(d) was drafted for cases like this one” and that Rule 502(d) made it “so document-by-document pre-production privilege review does not have to be performed ... in large e-discovery situations.” Id. at *9. 

Magistrate Judge Harvey viewed Plaintiff’s proposal as raising two related possibilities, “each based on the notion that entry of a Rule 502(d) order would allow [Defendant] to lower its costs by permitting it to produce documents without robust privilege review.” Id. at *9. One possibility was that the court “could enter an order under Rule 502(d) and then require [Defendant] to utilize the cheaper review protocol [Plaintiff] prefers, which would substantially lower the cost of complying with the [requests for production] at issue and therefore affect the proportionality analysis such that [Defendant] should be required to respond to them as written.” Alternatively, the court “could enter an order under Rule 502(d) and then allow [Defendant] to utilize whatever review protocol it prefers, but the [court] should consider only the lower cost of the review protocol [Plaintiff] prefers in its proportionality review, again affecting the proportionality analysis in [Plaintiff]’s favor.” Magistrate Judge Harvey noted Plaintiff’s view that either scenario would result in an order for Defendant “to produce the entirety of the email accounts of [the relevant individuals] for the identified time periods and to bear the cost of such production itself.”

Near the outset of his analysis, Magistrate Judge Harvey explained that Rule 502(d)’s enactment “was apparently motivated by the ‘increased prominence of electronic discovery that may involve the production of thousands of pieces of electronically stored information.’ ” Id. (quoting Amobi v. D.C. Dep’t of Corr., 262 F.R.D. 45, 52 n.1 (D.D.C. 2009)). But Magistrate Judge Harvey rejected Plaintiff’s proposal for several reasons. 

First, Rule 502(d) “merely allows a court to enter an order that attorney-client privilege or work product protection will not be waived by disclosure of protected information during discovery.” The Rule “says nothing about the necessity or reasonableness of any particular privilege-review procedure.” And although the Advisory Committee Note states that one of Rule 502(d)’s goals is to “reduce the costs of pre-production review for privilege and work product,” “[t]he Advisory Committee Note is not the law, the rule is.” Id. (quoting Bear Rep. Brewing Co. v. Cent. City Brewing Co., 275 F.R.D. 43, 48 (D. Mass. 2011)). As Magistrate Judge Harvey put it, “[i]f the drafters had wanted to encourage courts to prohibit a party from engaging in document-by-document privilege review without that party’s consent, they would have said so more clearly.”

Second, Magistrate Judge Harvey recognized that compelling Defendant to adopt Plaintiff’s proposed procedure “would likely have the effect of requiring production of privileged material.” Id. at *11. For example, relying on search terms such as “attorney-client privilege” or “work product” or “confidential” would be ineffective at picking up documents like “communications among non-attorneys[, which] can be entitled to protection if they concern matters in which the parties intend to seek legal advice ....” Magistrate Judge Harvey explained that courts and commentators generally disapprove of actions that have the effect of compelling disclosure of confidential information, and he emphasized that the federal rules “do[] not supersede controlling case law forbidding a court from compelling disclosure of protected information ....” Id. at *10. Magistrate Judge Harvey advanced several points to support this conclusion. For one, discovery orders must comply with the Federal Rules of Civil Procedure, including Rule 26(b)(1), which “limits the scope of discover[y] ... to nonprivileged information.” Id. (quoting Winfield v. City of New York, 2018 WL 2148435, at *5 (S.D.N.Y. May 10, 2018)). Additionally, Rule 502(d) was designed to protect privilege, not undermine it by compelling the disclosure of confidential documents. Further, the Rules Enabling Act precludes courts from interpreting federal rules in any way that substantively affects private rights. Magistrate Judge Harvey also noted that “a responding party, not the court or requesting party, is generally best suited to determine and implement appropriate procedures, methodologies, and technologies to identify, preserve, collect, process, analyze, review, and produce relevant and discoverable ESI [electronically stored information], and no Federal Rule has given judges the authority ... to dictate to parties how to search their documents.” Id. at *11 (internal quotation marks and brackets omitted). 

Third, Magistrate Judge Harvey identified practical reasons not to compel Defendant to adopt Plaintiff’s proposed review procedure. In particular, he recognized that Rule 502(d)’s clawback provision is an imperfect tool: “[I]t is ... ‘common sense observation’ that ‘[i]f an adverse party is provide[d] access to privileged material, a pertinent aspect of confidentiality will be lost.’ ” Id. at *11 (quoting In re Dow Corning Corp., 261 F.3d 280, 284 (2d Cir. 2001)). 

Ultimately, Magistrate Judge Harvey determined it would be inappropriate to compel Defendant to adopt Plaintiff’s proposed review procedure. Accordingly, Magistrate Judge Harvey determined that Defendant’s higher estimated cost of production was the proper cost to use “in balancing the burden against the likely benefit” in determining whether to compel Defendant to respond to Plaintiff’s discovery requests. Id. at *12.   2. An opinion from the Northern District of California sanctioning a defendant’s former outside counsel for failing to adequately supervise the defendant’s discovery responses. 

 In Optronic Techs., Inc. v. Ningbo Sunny Elec. Co., No. 16-cv-06370-EJD (VKD), 2020 WL 2838806 (N.D. Cal. June 1, 2020), U.S. Magistrate Judge Virginia K. Demarchi of the Northern District of California issued sanctions against one Defendant’s former outside counsel for failing to adequately supervise the Defendant’s discovery responses and finding that counsel’s withdrawal from representation did not substantially justify its failure to supervise.

In this postjudgment collections action, Plaintiff submitted document and interrogatory requests directed to enforcement of its judgment. Unsatisfied with one Defendant’s responses, Plaintiff had filed a motion to compel and argued, among other things, that the Defendant’s counsel (who signed the responses) had not taken a sufficiently active role in supervising the Defendant’s collection and production of documents. Id. at *2. Defendant acknowledged that its counsel had not personally collected documents but had instead provided guidance to Defendant about what to collect for production. In response to the motion, the Court ordered Defendant to “submit a declaration from a person with knowledge describing with specificity how [Defendant] conducted a search for documents responsive to [Plaintiff’s] post-judgment document requests.” Defendant did not do so, indicating that it was “unable to locate any individual competent to sign a declaration” to comply with the Court’s order. Id. at *3. 

Plaintiff moved for sanctions against both the Defendant and its counsel, citing Federal Rule of Civil Procedure 26(g)(1)(A) and arguing that Defendant’s counsel falsely certified Defendant’s interrogatories and document requests as complete and accurate. Plaintiff sought monetary sanctions alongside enhanced discovery supervision by Defendant’s counsel. Id. at *3. Magistrate Judge Demarchi quickly dismissed Plaintiff’s primary argument, explaining that Rule 26(g)(1)(A) applies only to initial disclosures, not discovery responses.

However, Magistrate Judge Demarchi also considered Plaintiff’s arguments under Rule 26(g)(1)(B), which provides that counsel’s signature on a discovery response operates as a certification by counsel that the discovery response is (i) consistent with the Federal Rules of Civil Procedure and warranted by existing law, (ii) not interposed for an improper purpose, and (iii) neither unreasonable nor unduly burdensome or expensive. Plaintiff had argued generally that Defendant’s counsel failed to take steps to ensure that Defendant complied with Plaintiff’s discovery requests.

Magistrate Judge Demarchi noted that “Rule 26(g) does not require the signing attorney to certify the truthfulness of the client’s factual responses to a discovery request. Rather the signature certifies that the lawyer has made a reasonable effort to assure that the client has provided all the information and documents available to him that are responsive to the discovery demand.” Id. at *4 (quoting Fed. R. Civ. P. 26 advisory comm. note, 1983 amdt., subdivision (g)). However, she agreed with Plaintiff that counsel “cannot fulfill its obligations under Rule 26(g) if it does not know, and does not inquire into, what [Defendant] did to search for responsive documents or whether [Defendant] followed its advice.” Id. at *5. “It is not enough for counsel to provide advice and guidance to a client about how to search for responsive documents, and then not inquire further about whether that advice and guidance were followed.”

Magistrate Judge Demarchi did not “conclude that counsel must always personally conduct or directly supervise a client’s collection, review, and production of responsive documents,” but she found that the circumstances presented by Plaintiff’s motion led to the conclusion that Defendant’s counsel did not make a reasonable effort to ensure that Defendant produced all the documents responsive to Plaintiff’s requests and therefore violated its obligations under Rule 26(g)(1)(B). Id. at *5-6. In particular, Magistrate Judge Demarchi held that the situation had merited additional care because Defendant and its counsel knew the Court and Plaintiff were “concerned about steps [Defendant] might take to frustrate enforcement of the judgment against it.” Nevertheless, counsel acknowledged that it did not know what decisions Defendant made about how to proceed with document collection or how it conducted the search for responsive documents.

Having found a violation of Rule 26(g), Magistrate Judge Demarchi noted that she must impose “sanctions for violation of counsel’s certification obligations unless it finds ‘substantial justification’ for the violation.” Id. at *6. In this regard, counsel cited a pending motion to withdraw as substantial justification for its supervisory failure. Id. at *7. Despite claiming that it could not fully respond as facts and communications related to its oversight were “confidential, privileged, and potentially prejudicial to [Defendant],” counsel’s brief also asserted that “ ‘non-confidential and non-privileged information’ ” demonstrate[d] [its] compliance with Rule 26(g).” Therefore, Magistrate Judge Demarchi found, by the terms of their own brief, counsel admitted that they were not “prevented from complying with its duty of reasonable inquiry with respect to the document production at issue.”

Finding no substantial justification, Magistrate Judge Demarchi imposed sanctions. First, noting that counsel no longer represented Defendant, Magistrate Judge Demarchi declined to require former counsel to actively supervise Defendant’s collection, review, and production of documents. Doing so would have been “inconsistent with the order of withdrawal and ineffective, given the presiding judge’s findings in support of [former counsel’s] motion to withdraw.” Rather, Magistrate Judge Demarchi ordered Defendant’s new counsel of record to ensure compliance with Defendant’s discovery obligations. Magistrate Judge Demarchi also imposed monetary sanctions jointly against Defendant and its former counsel, directing payment for attorneys’ fees and costs for the motions and hearings related to the violations at issue.

3. A ruling from the Eastern District of Pennsylvania finding that a defendant had fulfilled its obligations under Federal Rule of Civil Procedure 34 by producing documents as kept in the ordinary course of business and that the defendant had no obligation to correlate its document production to the plaintiff’s specific requests.

In Penn Engineering & Manufacturing Corp. v. Peninsula Components, Inc., 2021 WL 1224112 (E.D. Penn. Apr. 1, 2021), U.S. Magistrate Judge Lynne A. Sitarski held that Defendant had fulfilled its Rule 34 obligations by producing documents as kept in the ordinary course of business and that it had no obligation to correlate its document production to specific requests. 

Plaintiff sued Defendant, its direct competitor, for trademark infringement, false designation of origin, false advertising, and counterfeiting under the Lanham Act, alleging it unlawfully used marks identical to Plaintiff’s trademarks in connection with the sale of its competing products. Id. at *1. In conjunction with a number of other discovery motions, including motions to compel responses to its requests for production, Plaintiff moved to clarify whether Defendant was required to correlate its produced documents to Plaintiff’s requests for production. Plaintiff contended that Defendant violated Federal Rule of Civil Procedure 34 by producing 54,000 pages in 3,259 unsorted PDFs that were not correlated to any specific discovery request. Plaintiff claimed that the parties had been ordered to correlate documents to specific discovery requests on numerous occasions. Id. at *6.

Defendant countered that it was not required under Rule 34 to correlate documents that it produced as maintained in the ordinary course of business. Defendant also argued that the Court’s previous orders only addressed the format of the documents and required the parties to make a good faith effort to resolve any issues. Defendant claimed that despite reaching out to Plaintiff to resolve the dispute, Plaintiff never responded.

Magistrate Judge Sitarski began her analysis on these issues with reference to Federal Rule of Civil Procedure 34(b)(2)(E), which governs production of ESI: “Unless otherwise stipulated or ordered by the court, ... : (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms ....” Id. at *7 (quoting Fed. R. Civ. P. 34(b)(2)(E)). 

Magistrate Judge Sitarski noted that “[t]he touchstone remains, under Rule 34(b)(2)(E), that a requesting party is entitled to production of ESI as it is ordinarily maintained or in a form that is reasonably usable for purposes of efficiently prosecuting or defending the claims and defenses involved in the matter.” Id. (citing cases). Therefore, “[i]f the producing party produces documents in the order in which they are kept in the usual course of business, the Rule imposes no duty to organize and label the documents, provide an index of the documents produced, or correlate the documents to the particular request to which they are responsive.” Id. (internal quotation omitted). In this case, Defendant had produced documents as kept in the ordinary course of business and thus fulfilled its Rule 34 obligations. In making her ruling, Judge Sitarski pointed out that cases cited by Plaintiff in support of its motion showed that a producing party must only correlate documents if they are not produced as kept in the ordinary course.

Regarding Plaintiff’s contention that the parties had been ordered to correlate their discovery responses, Magistrate Judge Sitarski found based on available transcripts of prior court conferences before the district court judge that the court had clearly rejected Plaintiff’s request to have Defendant redo discovery or its filing system in order to correlate its requests. Id. at *8. Furthermore, Magistrate Judge Sitarski disagreed with Plaintiff’s contention that previous orders required Defendant to correlate all of its discovery request responses. One of the orders clearly stated that it was limited to the format of the documents; another ordered Defendant to correlate its responses for specific requests. Therefore, to the extent Plaintiff’s motion sought to require Defendant to correlate documents in its production to specific requests, the motion was denied.

4. A decision from the Eastern District of Louisiana denying the plaintiffs’ motion to compel discovery responses because the plaintiffs had failed to satisfy their obligation to confer or attempt to confer in good faith in an effort to resolve the discovery dispute before bringing the motion to compel.

In Trinidad v. Equilon Enterprises LLC, 2021 WL 1894868 (E.D. La. May 10, 2021), Chief Magistrate Judge Karen Wells Roby denied Plaintiffs’ motion to compel discovery responses because Plaintiff failed to satisfy its obligation to confer or attempt to confer in good faith in an effort to resolve the discovery dispute without court action. 

In this personal injury case, Plaintiffs, two scaffolding installers, received life-threatening injuries while working at Defendant’s facility. Id. at *1. Plaintiffs served Defendant with approximately 81 discovery requests, including production requests, interrogatories, and requests for admission. On the date discovery responses were due, Defendant responded to the requests for admission but requested more time to respond to the interrogatories and production requests, which made up the bulk of Plaintiffs’ requests. A Rule 37 status conference was held the following week to discuss the late discovery. Three days later, Defendant submitted responses to the remaining 72 requests. Within hours, Plaintiffs filed a motion to compel and sought an order striking Defendant’s objections and affirmative defenses unless Defendant fully and satisfactorily responded to the requests within 10 days.

Defendant opposed this motion because Plaintiffs failed to hold a Rule 37(a) meet-and-confer following receipt of Defendant’s responses but instead summarily stated that Defendant’s responses were “insufficient,” without specifically identifying which responses were inadequate and why, and because Defendant was given no time to cure any defective discovery responses. Id. at *2. 

Chief Magistrate Roby began her analysis by discussing Federal Rule of Civil Procedure 37, which permits a party seeking discovery to move for an order compelling an answer if “a party fails to answer an interrogatory.” Fed. R. Civ. P. 37(a)(3)(B). An “evasive or incomplete” answer is treated the same as a complete failure to answer. Fed. R. Civ. P. 37(a)(4). However, a party seeking discovery is not permitted to immediately appeal to the court on first receipt of a deficient response. A Rule 37(a) motion to compel must be accompanied by a “certification that the movant has in good faith conferred or attempted to confer” with the opposing party in an effort to cure whatever discovery defects exist, prior to seeking court action. Fed. R. Civ. P. 37(a)(1). 

Chief Magistrate Roby reviewed one of her prior opinions, Larkin v. U.S. Dep’t of Navy, 2002 WL 31427319 (E.D. La. Oct. 25, 2002), in which she held that a party seeking discovery had failed to comply with its discovery obligations when, after receiving responses they considered inadequate, they gave the other party only 3.5 hours to supplement those responses, without detailing which responses they considered inadequate and why.

Chief Magistrate Roby considered the significant similarities between Larkin and the present case: Both plaintiffs sent a general complaint about the inadequacy of the responses they received without reference to either which responses were deficient or why, and neither plaintiff waited even a day after receiving the discovery responses to file their motion to compel. 2021 WL 1894868 at *3. Chief Magistrate Roby further noted that Plaintiffs’ Rule 37.1 Certificate was deficient: failing to indicate any good faith attempt to cure the deficient responses. Plaintiffs attempted to rely on the status conference held before receiving Defendant’s responses to satisfy their obligations under Rule 37. But Chief Magistrate Roby noted both the spirit and purpose of the rule: A party must receive a “good faith” opportunity to cure deficient discovery responses before judicial intervention is sought, and where a court finds that the opportunity — if any — is inadequate, a motion to compel will not be granted.

Finally, Chief Magistrate Roby addressed the impact of the impending discovery and other deadlines in the case. First, she noted that discovery was not set to close for over eight months after Plaintiffs filed their motion to compel. Second, while the deadline to amend pleadings was fast approaching, the Federal Rules allow for amendments after that deadline in case of “good cause,” and courts have consistently held that newly discovered evidence constitutes such good cause.

Ultimately, Chief Magistrate Roby found that Plaintiffs’ “attempt to secure a resolution was only a surface attempt without the true intent to accomplish the objectives contemplated by the rule.” In light of Plaintiffs’ failure to hold a discovery conference and give Defendant “reasonable opportunity” to supplement their responses, Chief Magistrate Roby denied Plaintiffs’ motion in its entirety.