[Editor’s Note: This article was first published March 21, 2024 and EDRM is grateful to Tom Paskowitz and Robert Keeling of our Trusted Partner, Sidley, for permission to republish. The opinions and positions are those of the author.]

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

1. an order from the U.S. District Court for the Eastern District of California granting a motion to compel deposition testimony pursuant to Federal Rule of Civil Procedure 30(b)(6) related to certain “discovery on discovery” topics
2. a decision from the U.S. District Court for the Eastern District of Texas denying a motion to claw back a government report that Defendant had inadvertently produced, finding that the report was confidential and subject to the protective order in the case but was not covered by the attorney work-product doctrine
3. a ruling from the U.S. District Court for the Northern District of California declining to compel additional production of text message data for certain custodians based on “scant evidence” that the custodians used text messages to communicate about the issues in the case
4. an opinion from the U.S. District Court for the Western District of Oklahoma denying a motion to compel production of documents in native form via Dropbox and to identify which documents were produced pursuant to which requests for production

1. An order from the U.S. District Court for the Eastern District of California granting a motion to compel deposition testimony pursuant to Federal Rule of Civil Procedure 30(b)(6) related to certain “discovery on discovery” topics.

In Puckett v. Cnty. of Sacramento, No. 22-CV-0350 (KJM DB), 2024 WL 418187 (E.D. Cal. Feb. 5, 2024), U.S. Magistrate Judge Deborah Barnes addressed the standards for compelling a deposition pursuant to Rule 30(b)(6) regarding “discovery on discovery” topics.

In this action under 42 U.S.C. § 1983, Plaintiff alleged that Defendants deprived him of his constitutional rights by withholding or ignoring exonerating evidence in prosecuting him on robbery and murder charges. Id. at *1. During discovery, Defendants stated repeatedly that various documents never existed or were not maintained, and Defendants therefore could not produce documents in response to Plaintiff’s requests for production of documents.

Plaintiff served Defendants with notices of depositions pursuant to Rule 30(b)(6) seeking testimony regarding (1) Defendants’ preservation or destruction policies, procedures, or practices governing the requested documents; (2) any searches Defendants conducted to locate the documents; and (3) any actions Defendants took to respond to Plaintiff’s document requests. Defendants refused to produce any witnesses to testify on these topics, and Plaintiff moved to compel the depositions.

Magistrate Judge Barnes began her analysis by explaining that “[t]he general purpose of a Rule 30(b)(6) deposition is to permit the examining party to discover the entity’s position via a witness designated by the entity to testify on its behalf.” She further explained that “parties are entitled to test assertions in questioning witnesses during depositions, and it is fundamental that parties may simultaneously utilize any or all of the discovery mechanisms authorized by the rules.”

Magistrate Judge Barnes next addressed the standards for relevance under Federal Rule 26(b)(1), pursuant to which “[p]arties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” She noted that “relevancy” is defined broadly, “although it is not without ultimate and necessary boundaries,” and that the party resisting discovery “has the burden to show that discovery should not be allowed, and the burden of clarifying, explaining, and supporting its objections.” Magistrate Judge Barnes also noted that objections to discovery are waived if raised for the first time in a discovery motion or if “asserted in discovery responses but not raised in briefing on a discovery motion.”

In light of these standards, Magistrate Judge Barnes rejected Defendants’ assertion that requests for information on document storage and retention were impermissible. Id. at *2. Indeed, she noted that courts “recogniz[e] the value of Rule 30(b)(6) depositions in dealing with issues such as those presented here.” Id. at *3. She distinguished two cases relied on by Defendants, Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418 (D. N.J. 2009) and Brand Energy & Infrastructure Services, Inc. v. Irex Corporation, 2018 WL 806341 (E.D. Pa. Feb. 9, 2018). Magistrate Judge Barnes explained that the Ford court addressed a request for “a substantial reconstruction of the document collection process” but expressly blessed exploration of discovery issues through depositions of “fact witnesses who have knowledge in these areas.”

Magistrate Judge Barnes found that the Brand case was similarly unhelpful to Defendants because the court in Brand dealt with requests for production of documents at a “late stage,” which was not the case here. She also noted that the plaintiffs in Brand had apparently taken a Rule 30(b)(6) deposition related to certain discovery issues.

Magistrate Judge Barnes also rejected Defendants’ argument that the deposition topics prematurely sought “‘discovery on discovery’ without any evidence of bad faith.” She noted that “‘discovery on discovery’ is sometimes warranted” and that “where a party makes some showing that a producing party’s production has been incomplete, a court may order discovery designed to test the sufficiency of that party’s discovery efforts in order to capture additional relevant material.” Magistrate Judge Barnes noted in this context that Defendants’ production “has been less than incomplete, it has been essentially nonexistent,” and Plaintiff sought discovery that could ascertain whether Defendants’ production was, in fact, incomplete.

Magistrate Judge Barnes similarly rejected Defendants’ arguments based on particularity and burden. With respect to Defendants’ arguments that the first deposition topic was not reasonably particular, Magistrate Judge Barnes disagreed in light of the fact that the topic was focused on policies, procedures, or practices “concerning the preservation or destruction of documents that would be relevant to this action.” With respect to burden, Magistrate Judge Barnes noted that Defendants failed to satisfy the requirement that they “justify[] their objection by demonstrating that the time or expense involved in responding to requested discovery is unduly burdensome” by providing “sufficient detail in terms of time, money and procedure required to produce the requested documents.”

Last, Magistrate Judge Barnes addressed Defendants’ request for a protective order quashing Plaintiff’s deposition notices. Id. at *4. She explained that a court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” pursuant to Rule 26(c)(1), which was “enacted as a safeguard for the protection of parties and witnesses in view of the broad discovery rights authorized in Rule 26(b).” But the party seeking to limit discovery through a protective order must show “good cause” and bears the burden of showing that “specific prejudice or harm will result if no protective order is granted.” But she explained that “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”

Applying this test, Magistrate Judge Barnes found that Defendants failed to substantiate any specific prejudice or harm because Defendants argued simply that they “would be harmed in requiring to expend additional defense costs on matters only tangentially and vaguely related to the issues in this case, or are so vague that if forced to produce on such little information would end up wasting all parties’ time.” She found this argument to be “a broad allegation of harm, unsubstantiated by a specific example or articulated reasoning.” She therefore denied Defendants’ motion to quash.

2. A decision from the U.S. District Court for the Eastern District of Texas denying a motion to claw back a government report that Defendant had inadvertently produced, finding that the report was confidential and subject to the protective order in the case but was not covered by the attorney work-product doctrine.

In Adams v. Medtronic, Inc., No. 19-cv-870-SDJ-KPJ, 2024 WL 265860 (E.D. Tex. Jan. 23, 2024), U.S. Magistrate Judge Kimberly C. Priest Johnson analyzed the circumstances under which a confidential but irrelevant or nonresponsive document may be clawed back.

Plaintiffs in this product liability action alleged that Defendant manufactured a defective surgical stapler that caused serious injuries during one of Plaintiff’s surgeries. The parties subsequently became entangled in a discovery dispute concerning an Establishment Inspection Report (EIR) issued by the Food and Drug Administration (FDA) that was “shared with the company at the close of an inspection of a regulated facility to determine a company’s compliance with applicable laws and regulations.” Id. at *2. Defendants produced the EIR but subsequently moved to claw it back as a confidential document protected by the work-product privilege that was irrelevant because it did not concern the precise product at issue. In opposition, Plaintiffs argued that the EIR was a nonconfidential, nonprivileged document relevant to their allegations that Defendants’ procedures for detecting defects were “slow and too late for most patients.” Id. at *5.

After an in camera review of the EIR, Magistrate Judge Johnson first held that the version of the EIR produced to Plaintiffs was confidential. Id. at *2. Defendants argued that the EIR was “confidential and privileged and thus subject to clawback.” Plaintiffs argued that EIR documents are public and available via Freedom of Information Act requests. Magistrate Judge Johnson agreed with Defendants that the publicly available versions of the EIR would be more redacted than the EIR produced by Defendants, which contained confidential information that “is customarily kept private or closely held” or that “could constitute trade secrets or other confidential information.” Thus, Magistrate Judge Johnson concluded that the EIR was confidential and at least subject to the protective order in the case.

Nevertheless, Magistrate Judge Johnson held that the EIR was not subject to clawback by Defendants. She noted that although the clawback of documents is generally governed by FRE 502 and FRCP 26(b), Plaintiffs and Defendants here entered into a specific clawback arrangement as well. Defendants argued that the EIR was subject to clawback because it was “not responsive or relevant.” Id. at *4. Magistrate Judge Johnson rejected that argument, holding that FRE 502 and FRCP 26(b) do not provide for the clawback of a document merely because it is nonresponsive because “both Rule 502(b)(3) and Rule 26(b)(5)(B) specifically apply to privileged communications or information.” Because the parties’ clawback agreement did not contain a provision “that expands the ability to claw back documents because of responsiveness or relevancy,” Defendants could not claw back the EIR on the basis of its relevance. That arrangement specifically protected only documents “subject to attorney-client privilege, work-product protection, or any other privilege or protection recognized by law.” Still, “to resolve the disagreement between the parties,” Magistrate Judge Johnson addressed the issue of whether the EIR was relevant: She held that it was relevant to Plaintiffs’ allegations of Defendants’ deficient defect detection, complaint investigation, and standard operating procedures.

Magistrate Judge Johnson next rejected Defendants’ argument that the EIR was protected under the work-product privilege because “it was inadvertently produced based on counsel’s fact-gathering process during the course of discovery.” Id. at *5. Although the EIR was “prepared by the FDA … at the close of an investigation” and was not completed in anticipation of litigation, Defendants argued that because the EIR was “collected in anticipation of litigation,” the fact of its production rendered the document itself protected by the work-product doctrine. Magistrate Judge Johnson rejected this argument and held that the production of the EIR did not “reveal the selection process used by Defendants’ counsel and, thereby, does not reveal their mental impressions or legal opinions.” As such, it was not subject to the work-product doctrine. Magistrate Judge Johnson thus denied Defendants’ motion to claw back the EIR.

3. A ruling from the U.S. District Court for the Northern District of California declining to compel additional production of text message data for certain custodians based on “scant evidence” that the custodians used text messages to communicate about the issues in the case.

In Boston Retirement System v. Uber Technologies, Inc., No. 19-cv-06361-RS (DMR), 2024 WL 555891 (N.D. Cal. Feb. 12, 2024), Chief U.S. Magistrate Judge Donna M. Ryu addressed a motion to compel additional text message productions and text source data as well as additional discovery responses regarding certain Defendants’ use of text messages.

In this action for securities fraud, Plaintiff moved to compel text messages from two Defendants, Wan Ling Martello and John Thain, as well as the entire “text message source” from another Defendant, Travis Kalanick. Id. at *5. Earlier in discovery, Plaintiff had moved for an order compelling Defendant Uber to produce certain text messages. Id. at *6. Chief Magistrate Judge Ryu had denied that motion without prejudice and granted Plaintiff leave to resubmit its motion with evidence (by declaration) that the custodians at issue texted regarding the subject matter of the lawsuit.

Chief Magistrate Judge Ryu denied Plaintiff’s motion to compel the production of text messages from Martello and Thain. She noted that despite her earlier order requiring Plaintiff to provide evidence of relevant text messages, Plaintiff still had not attached to its motion any compelling evidence of text messages from Defendants Thain and Martello. Instead, Plaintiff merely argued that Uber produced text message discovery that included “highly relevant text messages” from Kalanick to Thain and Martello. But Plaintiff provided only a single example of a text message from Kalanick to Martello while asserting that Kalanick texted a similar message to Thain. Chief Magistrate Judge Ryu noted that Plaintiff had “ample time and opportunity to build a record to support a motion to compel text messages,” but while the single text message provided discussed a “financial topic,” it was far from a “smoking gun.” Accordingly, she denied Plaintiff’s request for text messages from Thain and Martello.

Chief Magistrate Judge Ryu next addressed Plaintiff’s request for the “entire Kalanick text message source.” As she explained, Defendant produced only 28 text messages from Kalanick as a custodian, and Plaintiff sought the “text message source” to explore potential gaps in Uber’s production. Plaintiff claimed to be “skeptical” that only 28 text messages were responsive to its document requests based on “other litigations and documents leaked to the press” that suggested Kalanick “constantly texted” concerning Uber. But Chief Magistrate Judge Ryu agreed with Uber’s argument that Plaintiff failed to provide any evidence that these “leaked” documents referred to anything responsive or that Kalanick has access to them. She also referred to Uber’s argument that Kalanick had limited access to his text messages from his time as Uber’s CEO and that Uber produced all responsive text messages with other Defendants. Chief Magistrate Judge Ryu noted that Plaintiff did not respond to these arguments and therefore denied Plaintiff’s motion for the Kalanick text message source.

Finally, Chief Magistrate Judge Ryu denied Plaintiff’s motion to compel additional discovery responses from Defendants Thain and Martello regarding their use of text messages. Id. at *7. Thain and Martello had previously submitted interrogatory responses stating that it was not their practice to communicate about Uber business by text message, and in particular they had not texted on the relevant devices about the subject matter of the lawsuit. Plaintiff claimed that these responses were “plainly inaccurate” in light of the Kalanick text message discussed above. But Chief Magistrate Judge Ryu held that the discovery responses were not inconsistent with the “scant evidence” referenced by Plaintiff, that is, two identical text messages from Kalanick to Martello and Thain, to which neither Martello nor Thain responded. Accordingly, she denied Plaintiff’s motion to compel.

4. An opinion from the U.S. District Court for the Western District of Oklahoma denying a motion to compel production of documents in native form via Dropbox and to identify which documents were produced pursuant to which requests for production.

In Miller v. Legacy Bank, No. CIV-20-946-D, 2023 WL 7410627 (W.D. Ok. Nov. 8, 2023), Chief U.S. District Judge Timothy DeGiusti addressed whether a party could be compelled to provide a production of electronically stored information (ESI) through a particular medium and organized by request for production.

In this action involving denial of a loan application based on alleged racial discrimination, Plaintiff sought an order compelling Defendant to produce responsive documents in native form via a Dropbox link, rather than a flash drive, and to identify which documents were produced pursuant to which requests for production. Id. at *1.

Chief Judge DeGiusti first addressed Defendant’s production of documents via a flash drive. Plaintiff argued that Defendant should be compelled to produce certain documents via a Dropbox link, as opposed to a flash drive, because Plaintiff’s document requests instructed Defendant to produce documents “in native format or otherwise with metadata intact.” Notably, Plaintiff did not contend that Defendant improperly withheld relevant documents or that Defendant’s discovery responses were incomplete or otherwise deficient.

Chief Judge DeGiusti noted that it is well settled that Rule 34(b)(2)(E)(ii) requires only that a party produce ESI “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” absent a request specifying a particular form. Id. at *2. He further explained that a “party need not produce the same electronically stored information in more than one form.” Id. (quoting Rule 34(b)(2)(E)(iii)). Here, Defendant first produced documents to Plaintiff via a Dropbox link but then made a supplemental document production via flash drive. But Chief Judge DeGiusti noted that regardless of whether documents had been produced via Dropbox or a flash drive, the documents themselves retained the same searchable PDF form. He therefore found that the “form” of produced information was a separate issue from how the information was delivered or stored, and he concluded that Defendant complied with its obligations under Rule 34 by producing the PDF documents by flash drive.

Chief Judge DeGiusti next addressed Plaintiff’s argument that Defendant was required to identify which documents were produced pursuant to which request for production. He explained that Rule 34(b)(2)(E)(i) gives the party responding to requests for production two options: “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.” Chief Judge DeGiusti noted that Defendant had elected to produce responsive documents as they were kept in the usual course of its business, which “practice is common in litigation involving business entities,” and he concluded that there was “no reason to deviate from the practice in this case.” Accordingly, Chief Judge DeGiusti found that Defendant had complied with its obligations under Rule 34 and denied Plaintiff’s motion to compel.