[Editor’s Note: This article was first published May 15, 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 District of Kansas finding that certain descriptions in a government agency’s categorical privilege log lacked sufficient detail and information to permit the Defendant and the court to assess the privileges claimed and requiring the agency to individually log the documents in those categories
2. A decision from the U.S. District Court for the Northern District of Ohio declining to require the Plaintiff to supplement a privilege log with only three entries, where the Defendant had not shown that additional documents withheld on privilege grounds predated the cutoff for privilege logging contained in the discovery order in the case
3. A ruling from the U.S. District Court for the Middle District of Florida denying Plaintiff’s request for a forensic examination of Defendants’ devices to identify the scope of lost electronically stored information (ESI) after successfully moving for spoliation sanctions
4. An opinion from the U.S. District Court for the Southern District of New York denying a motion for spoliation sanctions based on the loss of police video of an alleged excessive force incident and finding that a public records request and civilian complaint regarding the alleged incident did not trigger a duty to preserve the video footage

1. An order from the U.S. District Court for the District of Kansas finding that certain descriptions in a government agency’s categorical privilege log lacked sufficient detail and information to permit the Defendant and the court to assess the privileges claimed and requiring the agency to individually log the documents in those categories.

In Consumer Financial Protection Bureau v. Carnes, No. 23-cv-2151-DDC-TJJ Slip Copy, 2024 WL 1195565 (D. Kan. Mar. 20, 2024), U.S. Magistrate Judge Teresa J. James addressed the standards governing categorical privilege logs.

The Consumer Financial Protection Bureau (CFPB) brought this action seeking to avoid allegedly fraudulent transfers it claimed were undertaken to shield assets in connection with an investigation and subsequent administrative proceeding conducted by the CFPB. Id. at *1. Among several discovery disputes, one Defendant claimed that a categorical privilege log served by the CFPB was insufficient and moved to compel the CFPB to produce a more thorough privilege log.

Magistrate Judge James first described Defendant’s requests to the CFPB and the CFPB’s categorical privilege log. She noted that the majority of the categorical descriptions related to Defendant’s requests for documents (1) pertaining to the CFPB’s investigation of Defendants, (2) communications regarding the alleged fraudulent transfers, and (3) communications provided to, exchanged with, or received from any other federal, state, or local agency or regulator concerning any allegation in the CFPB’s complaint. Id. at *6.

After responding to the requests for production, the CFPB served a categorical privilege log with five columns: (1) Description; (2) Approx. Date Range; (3) Authors, Senders, Addresses, and Recipients; (4) Applicable Privileges or Protections; and (5) Responsive [Request for Production]. Magistrate Judge James explained that the CFPB’s categorical descriptions contained “lengthy date ranges and identify the authors/senders column with the general description ‘[a]ttorneys and supporting staff at the Bureau.’” Further, the “description” column provided categorical descriptions for “thousands” or “hundreds” of internal notes, memoranda, drafts, analyses, and interoffice communications withheld.

In her motion regarding the CFPB’s categorical privilege log, Defendant argued that the log did “not comport with basic requirements or provide sufficient information to assess the validity of the asserted privileges,” and she was unable to meaningfully challenge any claimed privilege over the withheld documents. Id. at *5. In particular, Defendant argued that the documents on the log would be relevant to her claimed defense based on the statute of limitations.

In response, the CFPB argued that it had provided a sufficient privilege log by categorically objecting to the wholesale production of its internal attorney-client communications. The CFPB submitted a declaration from one of its senior litigation counsel describing the manner in which the CFPB grouped and described the responsive documents by categories, including that each category indicated the volume of responsive communications to demonstrate the unreasonableness of providing a line-by-line privilege log, when the only withheld communications were the CFPB’s internal communications and work product.

Turning to the merits of Defendant’s motion, Magistrate Judge James explained that Federal Rule of Civil Procedure 26(b)(5) requires a party withholding information as privileged to “describe the nature of the documents, communications, or tangible things not produced or disclosed — and to do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” Id. at *7 (quoting Rule 26(b)(5)(A)(ii)). She noted that the advisory committee notes accompanying the 1993 amendments to Rule 26 recognized that “[d]etails concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly if the items can be described by categories.”

Magistrate Judge James next discussed prior case law, stating that “some cases from this District have permitted categorical privilege logs.” She explained that the prior cases had “allowed categorical privilege logs and recognized [that] whether to allow them is a case specific inquiry.” But she noted that the parties in those cases had only asserted attorney-client privilege and/or work product doctrine, whereas the CFPB was asserting “multiple privileges including the deliberative process and law enforcement privileges.” She also noted that the CFPB’s log did not reflect the same “magnitude” of documents that were at issue in those prior cases.

Magistrate Judge James ultimately concluded that the CFPB’s categorical privilege log lacked sufficient detail and information to permit Defendant and the court to assess many of the privileges claimed. Id. at *8. She found, in particular, that the grouping of withheld documents into broad categories on the CFPB’s privilege log made it “impossible to ascertain who sent or received the specific document withheld, the nature of the document (e.g., email, draft letter), the date it was sent, or which particular privilege(s) and/or protection(s) are being asserted for the specific document withheld.”

With respect to certain categories listed on the log, Magistrate Judge James found that it was “impossible to ascertain from the broad categories and limited information provided” whether the CFPB was withholding as privileged documents relevant to Defendant’s statute of limitations defense. She noted that if the CFPB were withholding documents related to the alleged transfers within the date range relevant to the statute of limitations defense, those documents “would be relevant … and must be individually logged in detail.” And, while she was “sympathetic to [the CFPB’s] desire to avoid individually logging a large number of documents, the Court must balance those concerns against [the CFPB’s] obligation to provide a sufficient privilege log that allows [Defendant] to assess [the CFPB’s] privilege claims.”

But Magistrate Judge James found that certain of the categories of documents detailed on the CFPB’s log were clearly not relevant to Defendant’s claimed statute of limitation defense because they covered a time period irrelevant to that defense. Accordingly, she ruled that these categorical descriptions were “sufficient” and that the CFPB would not “be put to the unnecessary and burdensome task of providing any additional privilege log information regarding those categories.”

2. A decision from the U.S. District Court for the Northern District of Ohio declining to require the Plaintiff to supplement a privilege log with only three entries, where the Defendant had not shown that additional documents withheld on privilege grounds predated the cutoff for privilege logging contained in the discovery order in the case.

In Ravin Crossbows, LLC v. Hunter’s Manufacturing Co., No. 23-CV-00598, 2024 WL 1175788 (N.D. Ohio Mar. 19, 2024), U.S. Magistrate Judge Amanda M. Knapp addressed a discovery dispute regarding the assertion of the attorney-client privilege in connection with a privilege log.

In this action, Plaintiff alleged that Defendant had infringed six of its patents. The order governing discovery of ESI addressed privilege logs and stated that “[n]o party is required to list on a privilege log Protected information generated on or after December 17, 2021, absent a showing of good cause.” Id. at *4.

Nevertheless, Defendant filed a motion to compel disputed discovery and argued that Plaintiff’s objections to Defendant’s document requests and requests for admission based on claims of attorney-client privilege were improper and did not describe the materials in a way that allowed Defendant to assess the asserted privilege as required by Rule 26(b)(5)(A)(ii). Id. at *5. In support of its contention that Plaintiff’s privilege assertions were deficient, Defendant noted that Plaintiff’s privilege log “has a paltry three entries.” Defendant therefore requested that the court order that “all materials encompassed by the requests but not listed on the privilege log have forfeited any such claims of privilege.”

In response, Plaintiff argued that any responsive document withheld as privileged was detailed on the privilege log, and that Defendant “ha[d] not levied any complaints about the sufficiency of [Plaintiff’s] narrative relating to the [privilege logs].” Plaintiff further argued that it had timely objected to Defendant’s discovery requests and complied with its obligations under the Federal Rules of Civil Procedure.

Judge Knapp noted that although Defendant was correct that Plaintiff’s privilege log included only three entries, “it had not cited any authority indicating that the mere length of a privilege log is dispositive as to whether a party has complied with its discovery obligations.” Further, Judge Knapp highlighted that the parties had “stipulated that they [were] not ‘required to list on a privilege log Protected information generated on or after December 17, 2021, absent a showing of good cause.’” As such, Judge Knapp found that Defendant’s “arguments rely on an unsubstantiated assumption that [Plaintiff was] in possession of a larger number of responsive privileged communications which predate December 17, 2021, and [were] not electronic communications governed by the ESI Order.” She then found that Plaintiff had no obligation to produce, and thus no obligation to list in its privilege log, any privileged electronic communications governed by the ESI order.

Thus, Judge Knapp denied Defendant’s motion to compel and request for an order that “all materials encompassed by the requests but not listed on the privilege log have forfeited any such claims of privilege” based on “the lack of any information suggesting Plaintiff actually withheld additional privileged materials” not encompassed by its privilege log or the ESI order.

3. A ruling from the U.S. District Court for the Middle District of Florida denying Plaintiff’s request for a forensic examination of Defendants’ devices to identify the scope of lost ESI after successfully moving for spoliation sanctions.

In EmCyte Corp. v. XLMedica, Inc., No. 19-CV-769, 2024 WL 1328347 (M.D. Fla. Mar. 28, 2024), U.S. Magistrate Judge Nicholas P. Mizell addressed when production of limited access files may be appropriate and whether forensic examination of a device under Rule 37(e) was warranted.

This action involved a dispute over trademark rights concerning plaintiff EmCyte’s blood-concentrating systems. Id. at *1. Plaintiff alleged that Defendants Anna Stahl (a former employee of EmCyte) and her company, XLMedica, engaged in trademark infringement by selling products offered under infringing marks that were confusingly similar to the trademarks of Plaintiff’s blood-concentrating systems. In countersuit, Defendants alleged that Plaintiff and its chief executive officer, Patrick Pennie, engaged in tortious interference when Plaintiff communicated to XLMedica’s customers and distributors regarding the conduct alleged in their complaint, with the intent to harm XLMedica’s business relationships with distributors of its products.

Earlier in the case, the court had found Plaintiff entitled to $11,329 in fees and expenses for Defendants’ “improper document-production practices” after Defendants produced a limited-access version of a QuickBooks file that included only a subset of data Defendants deemed to be relevant, despite multiple orders directing Defendants to produce a full-access native version of the file. Defendants requested that the court reconsider the sanctions order, but only to the extent it found the improper production of the QuickBooks file to be sanctionable and contemplated further proceedings to tailor an appropriate sanction. Plaintiff requested a finding that Defendants engaged in spoliation and an order requiring a forensic examination of Defendants’ devices to potentially identify the loss of responsive ESI.

Regarding Defendants’ motion for reconsideration of the sanction order, Judge Mizell emphasized that the court clearly directed Defendants to make the entire native QuickBooks dataset available to Plaintiffs twice previously. Id. at *2. He noted “[t]he court had categorically rejected defense counsel’s suggestion that — on a going forward basis — an outside accounting firm could create a limited-access version so as to limit the production to that which Defendants deemed relevant.” Judge Mizell found that the sanctions were appropriate because Defendants knowingly defied the court’s orders when they produced a limited-access QuickBooks file after the court explicitly rejected this notion. Pursuant to Rule 37, Judge Mizell ordered defense counsel to pay $1,600 to Plaintiff as an expense-of-motion award and certify the completion of the production of the QuickBooks files.

Judge Mizell then addressed Plaintiff’s motion for an order requiring a forensic examination of Defendants’ devices related to the alleged spoliation of ESI and considered whether Defendants should be sanctioned pursuant to Rule 37(e). The motion was brought after Plaintiff conducted nonparty discovery that yielded ESI originally generated by key figures associated with Defendant. Id. at *5. Plaintiff argued that Defendants never produced this ESI even though it was responsive to Plaintiff’s discovery requests. Based on this, Plaintiff believed that “other responsive ESI may have been lost due to possible failures to implement adequate litigation holds or properly supervise the collection and production of ESI” and requested a finding that the defendants engaged in spoliation and an order requiring a forensic examination of their devices to potentially identify the loss of responsive ESI.

Plaintiff had previously moved for sanctions “[t]o put an immediate and permanent stop to Defendants’ [discovery] dodgery” and requested the court order “an immediate hand-over of a forensic copy of the laptop used by Defendants to warehouse Defendants’ documents to [Plaintiff’s] counsel for inspection, together with access to cloud-based, text and email systems where the remaining documents are maintained” as well as monetary sanctions. The court had granted in part Plaintiffs’ motion for sanctions, but held off on determining the precise contours of relief until it received certain exhibits that included a collection of documents produced by third parties. Id. at *6. Upon receipt of the exhibits, the court found that “Defendants failed to adopt a reasonable plan to identify, collect, and produce documents responsive to requests for production and ‘purposefully implement that plan in good faith.’” Id. (quoting A Handbook on Civil Discovery Practice in the United States District Court for the Middle District of Florida). When the court met with counsel, it “became abundantly clear that neither party had produced text messages nor had they devised any protocol for doing so.” The court proposed that Defendants “double-check” to see if there was a way to obtain the lost ESI. Plaintiff believed that the Defendants did not “heed the court’s suggestion” and filed a motion for sanctions based on the alleged spoliation of ESI.

Judge Mizell was not convinced that any additional sanctions or remedial measures were necessary for the alleged spoliation ESI by Defendants. Id. at *7. Judge Mizell noted that Plaintiff relied on just 13 emails recovered from third parties to request that the court infer the existence of lost ESI, despite the fact that Defendants had previously produced thousands of documents. Judge Mizell noted that “perfection in preserving all relevant ESI is often impossible,” and that Plaintiff had “not shown that the relevant ESI was lost or was unrecoverable due to the Defendants’ failure to take reasonable steps to preserve it, as they recovered emails from third parties.”

As such, Judge Mizell held that Plaintiff was “nowhere close to showing that the heavy-handed step of forensically examining the Defendants’ devices was warranted” and denied Plaintiff’s request for a forensic examination of Defendants’ devices to potentially identify the loss of responsive ESI.

4. An opinion from the U.S. District Court for the Southern District of New York denying a motion for spoliation sanctions based on the loss of police video of an alleged excessive force incident and finding that a public records request and civilian complaint regarding the alleged incident did not trigger a duty to preserve the video footage.

In Chepilko v. Henry, 18-CV-02195, 2024 WL 1203795 (S.D.N.Y. Mar. 21, 2024), U.S. Magistrate Judge Stewart D. Aaron analyzed when police camera footage should be preserved “in anticipation of litigation” for spoliation purposes under Rule 37(e).

In this action, Plaintiff alleged that Defendant Henry, a lieutenant with the New York Police Department (NYPD), used excessive force when he pushed Plaintiff to the other side of a street as Plaintiff attempted to request that Henry’s sergeant provide him with information about a rival ticket vendor. Id. at *7. For standing in the street during this incident, Plaintiff received a criminal summons for disorderly conduct in disrupting vehicular traffic, which was dismissed less than a week later. Id. at *8. A year later, Plaintiff brought several claims related to the incident, including excessive force, failure to intervene, and malicious prosecution. Id. at *12. The case proceeded ultimately to bench trial, and Judge Aaron resolved the discovery dispute in the same order as the decision on the merits.

The parties’ discovery dispute centered around the requirements for preservation of NYPD footage that would have captured the incident. The parties agreed that the NYPD footage at issue was destroyed as a result of the 30-day retention policy NYPD has for its camera footage, but disputed whether the destruction of that footage was appropriate. Id. at *3. Plaintiff filed a motion for sanctions under Rule 37(e) as a result of the deletion of this footage, arguing that Defendants had an obligation to preserve the footage when it was deleted. Defendants argued that because Plaintiff filed suit almost one year later, Defendants were not on notice of any obligation to preserve the footage from deletion 11 months prior. Id. at *2. Plaintiff countered that other factors triggered the obligation to preserve the footage. Id. at *5. Judge Aaron ultimately held that none of these factors triggered the obligation to preserve footage, denied the Rule 37(e) motion, and ultimately rendered judgment for Defendants on the merits.

Judge Aaron first noted that one of the “threshold” factors required for a successful Rule 37(e) sanctions motion was that “the ESI should have been preserved in anticipation of litigation.” Id. at *4. Judge Aaron rejected each of the factors that Plaintiff argued triggered an obligation to preserve the footage before the filing of the complaint almost a year later. First, Judge Aaron rejected Plaintiff’s argument that “the incident itself” should have put Defendants on notice of litigation sufficient to trigger obligations to preserve. Id. at *5. Judge Aaron refused to “endorse a bright line rule that a police officer should anticipate litigation every time he issues a summons” and noted that as Plaintiff was not injured and the force used was in any case not excessive, Defendants need not have “reasonably foreseen litigation” as a result. Similarly, Judge Aaron noted that a 911 call after the incident did not trigger a preservation obligation as “Plaintiff merely advised the 911 operator that Lt. Henry ‘pushed [Plaintiff] several times.’” Id. at *5 n.4.

Judge Aaron also rejected Plaintiff’s argument that Plaintiff’s public records Freedom of Information Law requests for the footage of the relevant cameras, filed immediately after the incident, put Defendants on notice of a duty to preserve. Id. at *6. Judge Aaron held that merely initiating a public records request does not necessarily put a department on notice that the records are requested for the purpose of litigation and so does not trigger a preservation obligation.

Finally, Judge Aaron rejected the argument that a Plaintiff-prompted investigation by the New York City Civilian Complaint Review Board triggered any obligations to preserve. Plaintiff argued that the investigation, which resulted in a request for NYPD footage by the Civilian Complaint Review Board and an interview with the sergeant involved in the incident, triggered an obligation to preserve. Id. at *5. Judge Aaron rejected this argument, noting that the Civilian Complaint Review Board is separate from the NYPD and that the mere filing of a complaint with the Board, or an investigation thereof, does not necessarily trigger an obligation to preserve. Id. at *6.

Accordingly, Judge Aaron rejected Plaintiff’s Rule 37(e) sanctions motion in its entirety.