Deciding what should be preserved and who should preserve it can be difficult when litigation first begins. However, do not be fooled. A party can feel the wrath of the Courts if an interested non-party fails to preserve information leading up to trial. In the case of Pettit v. Smith, the court found that a state agency had a duty to preserve evidence even though the agency was not a party to the case. This case involved a claim of excessive force by an inmate against the alleged attacking officer, supervising officers, and the state of Arizona. However, it did not include the agency that oversaw the state prison, which is referred to as ADC. The plaintiff claimed that the defendants and ADC should have taken measures to preserve evidence once they had notice of the litigation. On the other hand, the defendants claimed that ADC had control over the missing evidence, and the defendants should not be held responsible for the disappearance of evidence they did not control.

In the Sixth Circuit, a party seeking sanctions for the destruction of evidence must show three things: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a "culpable state of mind"; and (3) the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. You can find countless articles that outline when the obligation to preserve documents occurs. The Federal Rules of Civil Procedure state, that whenever it can be “reasonably anticipated” that an action will be filed, all parties have a duty to preserve potentially relevant evidence. You can also find numerous articles about the third fact, an individual’s claim that the requested destroyed electronic discovery is relevant to their cause of action or defense. However, this article is about the second factor, the evidence was destroyed with a "culpable state of mind.” The Model Penal Code 2.02(2) establishes that there a four culpable states of mind: purposely, knowingly, recklessly, and negligently. At common law there are more than just the four Model Penal Code culpable states (wickedly, purposely, intentionally, willfully, knowingly, recklessly, maliciously, negligently, scienter). A person acts purposely with respect to a material element of an offense if it is his conscious object to engage in conduct of that nature or to cause such a result; and he is aware of the existence of such circumstances or he believes or hopes that they exist. A person acts knowingly if he is aware that his conduct; and he is aware that it is practically certain that his conduct will cause such a result. A person acts recklessly when they have a conscious disregard of unjustifiable and substantial risk. Finally, a person acts negligently when a person should have known better then to take that substantial risk that the material element exists or will result from his conduct. The disregard of the risk must be a gross deviation from the standard of care that a reasonable person would have followed. The court in Siggers recognized that "failures to produce relevant evidence fall 'along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality . . . .'" And, "'[o]nce the duty to preserve attaches, any destruction of [evidence] is, at a minimum, negligent.'” This case is an example of one area of the law crossing over into another. The Sixth Circuit incorporated aspects of criminal law into the determination of sanctions. However, the transition is appropriate. A person must purposely, knowingly, recklessly, or negligently destroy electronic documents and evidence to be guilty and worthy of sanctions. Here, the court held that sanctions were not appropriate in this situation because “Siggers failed to demonstrate Campbell’s ‘culpable state of mind’ in destroying the evidence and show that responsive documents existed and were among the destroyed. The court reasoned that although Campbell's discovery failures reflect negatively on her in regards to Siggers' motion, they do not, when weighed against the above considerations, merit the imposition of sanctions. Instead of sanctions, the court offered Siggers the opportunity for redress by questioning Campbell at trial about her failure to timely impose a litigation hold and about the other matters related to his assertion that she must have had relevant e-mail communications that no longer exist. If courts are following such a policy it is important that individuals understand the possible (criminal law based) consequences of their actions. This case illustrates that the importance of proper electronic data management and hold policies in order to avoid potential penalties and sanctions. Timothy received his B.A. from Rutgers University in 2011. He began his post-college life working in Trenton, New Jersey at a lobbying and non-profit management organization before attending law school in the fall of 2012. He will receive his J.D. from Seton Hall University School of Law in 2015. Timothy has had a diverse set of experiences during his time in law school and has found his calling in Tax Law. Want to read more articles like this? Sign up for our post notification newsletter, here.

The sanction of an adverse inference is appropriate, but not mandatory, in cases involving the negligent destruction of evidence. The court will determine on a case-by-case basis whether sanctions are appropriate where a party negligently destroyed evidence. However, the court is more likely to impose sanctions when a discovery obligation is breached through bad faith or gross negligence rather than ordinary negligence. In Schulman v. Saloon Beverage, Inc., Schulman (the “Plaintiff”) sued Saloon Beverage, Inc. (the “Defendant”) under Vermont’s Dram Shop Act for allegedly serving Mark Clarke, a drunken patron, four Sierra Nevada draft beers approximately ten minutes before he collided head on with the Plaintiff’s car. The Defendant contended that Clarke was not at its saloon on the night of the accident. The only documentary evidence available to prove Clarke was at the saloon were the records of checks because Clarke allegedly paid in cash. The Plaintiff filed a Rule 37 motion seeking sanctions for failing to preserve or permitting the destruction of the checks. The Plaintiff alleged that the Defendant failed to produce all of the check receipts for the night in question. After the Defendant produced printed copies of all the check receipts, the Plaintiff then alleged that the Defendant destroyed or altered the evidence because the check receipts contradicted other evidence which showed that Clarke was at the saloon. The Plaintiff wanted to prove that the Defendant altered the receipts by analyzing the electronically stored information (“ESI”) in original format; however, the computers were not preserved when the saloon went out of business. The issue in this case concerned whether the Plaintiff established its spoliation claim against the Defendant for destroying the ESI. A prerequisite to a spoliation claim is that the sought-after evidence actually existed and was destroyed. In order to obtain an adverse inference instruction regarding the loss or destruction of evidence, a party must establish: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. In Schuman, the Plaintiff established that the Defendant negligently destroyed the ESI. There was no dispute that the check receipts were relevant because they involved the disputed issue of whether Clarke was at the saloon. The court found that the Defendant either knew or should have known that the ESI would be relevant to litigation because the Defendant was on notice when the Plaintiff made a claim in the Defendant’s bankruptcy proceedings. Furthermore, the court concluded that the ESI was destroyed through ordinary negligence, a culpable state of mind. Although the Plaintiff established that the Defendant negligently destroyed the ESI, the court still held that an adverse inference instruction was not appropriate because the Plaintiff’s suggestion of prejudice was based on conjecture. Instead of imposing the sanction, the court merely held that evidence of the destruction of the ESI may be admissible at trial. The sanction of an adverse inference is not mandatory in cases involving the negligent destruction of evidence. The court has the discretion to determine whether the sanction is appropriate where a party negligently destroys evidence on a case-by-case approach. A party seeking an adverse inference instruction should attempt to bolster its claim by establishing that the other party breached a discovery obligation through bad faith or gross negligence. Gary Discovery received a B.S. in Business Administration, with a concentration in Finance from the Bartley School of Business at Villanova University. He will receive his J.D. from Seton Hall University School of Law in 2015. After graduation, Gary will clerk for a presiding civil judge in the Superior Court of New Jersey.

When you think about making a copy, you may think of copying and pasting a document into a thumb drive or a folder in your documents. You might also think about scanning a document and saving that copy as a PDF. However, the question in many cases has become what is the price of that copy, and is it a cost that can be recovered. In the case of In Re Text Messaging Antitrust Litigation, the court addressed this very vague and unsettled question. The court did so by accepting the rule previously set forth in Race Tires Am., Inc. v. Hoosier Racing Tire Corp.,[1] which basely states the following: The cost of making an electronic copy may be recovered, but costs that are unnecessary to making the actual copy will not be recovered. In other words, you may not recover for any extra enhancements made to ESI; however, you may recover any costs associated with the basic copy of the information. Why is this frustrating? Because technology presents numerous standard features which streamline and lower the cost of discovery that are deemed unnecessary enhancements under this rule. This case presents a perfect example of an enhancement that is deemed unnecessary in regards to making copies of electronic data. The technology is called optical character recognition (OCR), which allows a computer to recognize text so that it may be copied, pasted, and searched. The defendants assert that OCR is a necessary part of copying ESI in order to perform basic interactions with an electronic document (i.e., copying and pasting from the ESI copies). Most individuals assume that the ability to copy and paste data from an electronic document is standard; and as such, it logically follows that this would be a necessary part of making an electronic copy. However, here, the court deemed that OCR is not a necessary part of making copies. Under this framework, even the commonplace technological advancements such as providing the ability to copy and paste from a copied electronic document are not seen as a necessary cost. Therefore, the decision to utilize such technology is done on producing party’s own dime. In this case, the court cites Race Tires again stating, “gathering, preserving, processing, searching, culling, and extracting ESI simply do not amount to `making copies.'" They further explained that only scanning and file format conversion could be considered under the small umbrella of “making copies.” Further, anything that can be deemed “processing" is also not seen as part of “making copies”. The court even expands on this to say that even if the processing was “essential” to making an electronic copy “comprehensive and intelligible” the services of processing the data are not included in making copies, and therefore, will not be recoverable. The Court in this case does not specifically determine the award of costs, but rather directs the parties to resubmit a budget in compliance with these rules. However, in the often cited Race Tires case, the court basically limited the awardable costs to only the scanning of hard copies, the conversion of files to appropriate formats, and the transfer of VHS tapes to DVDs. Victoria O’Connor Blazeski (formerly Victoria L. O’Connor) received her B.S. form Stevens Institute of Technology, and she will receive her J.D. from Seton Hall University School of Law in 2015. Prior to law school, she worked as an account manager in the Corporate Tax Provision department of Thomson Reuters, Tax & Accounting. Victoria is a former D3 college basketball player, and she has an interest in Tax Law and Civil Litigation. After graduating, she will clerk for the Hon. Joseph M. Andresini, J.T.C. in the Tax Courts of New Jersey. Want to read more articles like this? Sign up for our post notification newsletter, here. [1] 674 F3d 158 (3d Cir. 2012).

A party has been burdened with manually reviewing 565,000 potentially relevant documents for search term hits. This manual method of review was agreed on by both parties and memorialized in a court order at the start. Shortly into the review process, the plaintiff realized this method would be costly and time consuming, and took it upon themselves to apply a predictive coding method using the agreed upon search terms. They then moved before the court to be able to use these predictive coding techniques, and not human manual review, to review the documents. The plaintiff argued that the modification to predictive coding should be utilized because it would achieve a more accurate measure of relevant documents, in addition to saving time and money. The defendant argued the opposite, believing that the predictive coding protocol was complicated and had various other issues involved. They argued that other courts, which have allowed predictive coding, have stressed the need for transparent and cooperative behavior by all parties, a manner of which plaintiff in this case has not acted. They even went as far as to say that the predictive coding protocol utilized by the plaintiffs did not comply with the “best practices” for the chosen software. The court, although in support of predictive coding, ordered the plaintiff to produce all documents in the agreed upon manner (Human review wins!). “If the parties had worked with their E-discovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol.” But here, their hands were tied by the earlier court order. The court also stated that, and agreeing with the defendant’s argument, predictive coding requires a heightened degree of transparent cooperation among parties. “In the few cases that have approved technology assisted review of ESI, courts have consistently required the producing parties to provide the requesting parties with full disclosures about the technology being used, processes, methodology and documents used to “train” computers.” Here, the court found that the Plaintiff has been unwilling to engage in the level of transparency necessary, which they believed would “only result in more disputes and delays.” TAKEAWAY: The parties, especially the moving party, should have prepared a electronic discovery strategy from the beginning, as the main problem here was that the plaintiff sought to modify an already agreed upon order and the court thought it was too late in the game. Additionally, the parties must be open and transparent about the methodology being used with the technology if predictive coding is the agreed upon ESI method. Amanda is a third-year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this? Sign up for our post notification newsletter, here.

After requesting and receiving a consumer credit disclosure from defendant Experian, plaintiff Edward Dixon noticed that Experian was not reporting his payment history concerning his mortgage account held by Green Tree Servicing, LLC. While Dixon admits that his mortgage account was previously held by GMAC Mortgage until the account was discharged in bankruptcy, he argued that his payment history with Green Tree should nevertheless have been reported by Experian because he continued to make mortgage payments to Green Tree post-bankruptcy. After filing suit against Experian alleging violations of the Fair Credit Reporting Act, Dixon served seventy Requests for Production and 40 topics for Experian’s Rule 30(b)(6) corporate witness. While Experian asserts it has already produced 966 pages of discovery, Dixon asked the court to compel Experian to provide supplemental responses, specifically, in their native format as originally requested. After discussing Rule 34 and Rule 26 in explaining the dynamics of ESI-related discovery, the court noted that Dixon explicitly requested that Experian produce electronically stored information in the electronic form in which it is normally kept. Dixon's request further defined the applicable terms of “electronically stored information” and “native format” so there would no confusion as to the nature of his discovery request. In response, Experian produced the information in unsearchable PDF format but did not address ESI or object to Dixon’s ESI specifications. Thus, the court ruled, “Experian waived any objection to the ESI format requested by Dixon pursuant to Rule 34(b)(1)(C).” This waiver by failure to object was perhaps Experian’s greatest oversight. Not only did the court subsequently grant Dixon’s motion to compel as to his requests for discovery in native format, but the court made clear that “[i]t is not Dixon’s burden to now explain why the native format…would be more useful to him than the .pdfs.” Even though Experian was not ordered to export the documents into a readable format such as Microsoft Word or Excel, Experian was still ordered to produce the documents in their requested native format. In addition to compelling documents in their native format, Dixon also asked the court to compel internal and external communications and written policies pertaining to how mortgage accounts of bankrupt consumers are and should be reported. Experian argued that it has already produced a complete, text-searchable version of the 2012 Credit Reporting Resource Guide and argues that no further information need be produced. Agreeing with Dixon, the court found that internal and external communications, “including those pertaining to how mortgage accounts of bankrupt consumers are and should be reported” are relevant to the policies included in the Guide and help established whether Experian’s procedures were reasonable. Further, the court ordered Experian to, at least, conduct a search as to whether any communications or emails with Green Tree regarding Dixon’s dispute exist because such communications are relevant to Dixon’s claims. In the event Experian found no communications exist, the court advised Experian to “state so in its amended responses.” The court then examined several of Dixon’s specific discovery requests. Dixon requested that Experian produce “any and all name scans, snap shots, or other periodic backups of Plaintiff’s file,” presumably in an attempt to demonstrate the content of his credit file at various points in time. Dixon argued such request went to the reasonableness of Experian’s policy that post-bankruptcy payments not be reported. Experian countered, stating that such request is unduly burdensome, overly broad, neither relevant to the litigation, nor reasonably calculated to lead to the discovery of admissible evidence and vague and ambiguous as to the meaning of its terms. The court ultimately agreed with Experian and held that “even if the discovery were relevant . . . the burden on Experian in compiling such ‘periodic backups’ that do not already exist outweigh Dixon’s need for the information” especially since the court ordered Experian to provide Dixon with documentation in native format. The motion to compel this periodic backup information was denied. In ruling on Dixon’s motion to compel documents Dixon believes Experian is withholding, the court found little support that Experian was actually withholding documents and ruled that “Dixon’s suspicion that additional documents may exist is an insufficient basis on which to compel discovery.” The court additionally declined to award any expenses to Dixon related to this motion. The court then concluded by reviewing Experian’s motion for a protective order based on Experian’s assertion that Dixon’s Rule 30(b)(6) deposition notice exceeds the scope of discovery permitted by Rule 26(b). Experian requested protection from six of the thirty-one topics identified by Dixon that Experian believes are not relevant to this case. The court granted protection for five of these six topics: protection from depositions on Experian’s periodic backups; protection from depositions on the exportation of consumer credit files into a readable format; protection from depositions regarding e-mail records; protection from depositions regarding a confidential, one-page document that produced in another lawsuit, and; protection from depositions concerning the identities of Experian representatives most knowledgeable regarding searching and positing queries to an internal database. Many of these protections were granted on the basis that the court had already compelled Experian to produce documents in their native format, thus eliminating the need for excessive depositions aimed at acquiring the same or similar information. The court, however, denied the motion for protective order as to communications between Experian and Consumer Data Industry Association, the organization responsible for producing the 2012 Guide relied on by Experian for guidelines on credit reporting. The court held that should Experian produce responsive communications, then “Dixon is entitled to pursue this topic in Rule 30(b)(6) deposition.” Based on the foregoing, the court granted in part and denied in part Dixon’s motion to compel. Similarly, the court granted in part and denied in part Experian’s motion for a protective order and ordered Experian to make a Rule 30(b)(6) witness available to Dixon for deposition on the single topic if circumstances so demand. The court concluded by extending the discovery deadline to allow the parties to comply with the court order. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science. She will receive her J.D. from Seton Hall University School of Law in 2015. After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this? Sign up for our post notification newsletter, here.

The court began its opinion by reciting the quote that “[d]iscovery relevance is minimal relevance,” leading most readers to presume the court was going to rule in favor of Plaintiff’s motion to compel. However, after learning that Plaintiff sought “the entire claims file” of Defendant, that presumption slowly dissipates. The motion before the court involved Plaintiff’s request for an order compelling Defendant to produce documents that are responsive to certain of Plaintiff’s second, third and fourth sets of Requests for Production of Documents. The Plaintiff alleged that Defendant’s objections are premised on unsupported claims of privilege and that the documents Defendant did turn over were excessively redacted. After a back and forth regarding the concept of “privileged” the court rules that the real crux of the issue is the “point at which Defendant was reasonably anticipating litigation.” It is at this point that a privilege is created for the documents at issue based on the work product doctrine as outlined in Fed. R. Civ. P. 26(b)(3)(A) at which point a privilege for the documents at issue based on the work product doctrine. Because insurance claims are of such sensitive and proprietary nature, the court holds that the question of whether insurer documents were created in anticipation of litigation “depends on whether the party seeking protection can point to a definite shift made by the insurer from acting in its ordinary course of business to acting in anticipating of litigation.” Colloquially known as a “trigger” for document preservation, the burden is on the Defendant to establish the existence of such privilege in the face of litigation. The court ultimately held that the relevant date was December 28, 2012, when Defendant sent a letter regarding a settlement check. Thus, the court ordered that any information withheld on the basis of work product doctrine after that time must be produced. After serving its second set of discovery requests, the Plaintiff subsequently asked for the documents to be produced in native electronic format. However, the Defendant had already produced documents in paper and PDF form, which Plaintiff alleged was not the form maintained by the Defendant “or in any reasonably usable form.” Citing Fed. R. Civ. P. 34(b)(2)(D) and (E), the court noted that the rule allows, but does not require, the requesting party to specify the form in which it is requesting electronic data. The court also noted there is nothing in the rule that prohibits a party from requesting different formats from one set of discovery requests to the next. Ruling in favor of the objecting Defendant, however, the court considered the “proprietary nature of certain software used by Defendant” and “Defendant’s right to withhold privileged information” as well as the “added costs of re-producing information already submitted to Plaintiff.” Because the Defendant endured the time, effort, and expense of producing documents in PDF form as initially requested by Plaintiff, the court denied Plaintiff’s request to compel the native electronic forms of such documents. The Plaintiff’s motion to compel also sought all files containing “similar” claims. While disregarding the Plaintiff’s motivations for requesting such documents, the court opined that the effect of requiring this production would be to “subject [Defendant] to undue burden in light of topics which, at best, have limited evidentiary value in this case given the broadly worded nature of the information requested.” Adding insult to injury, the court makes it a point to criticize Plaintiff’s complaint. The cause of action was premised on a breach of the covenant of good faith and fair dealing yet Plaintiff’s motion “continually” refers to this as a claim for “bad faith.” Succinctly and sharply, the court imparts some legal education by bluntly stating that the two are not interchangeable. After making its criticism of Plaintiff’s mischaracterization, the court writes that “even if such information were to be considered relevant, the requests, as written, are facially over broad.” The court broadly cites a “lack of specificity” before denying more than 25 of Plaintiff’s discovery requests. Because Plaintiff “failed to provide a sufficient, substantive limitation,” the court ruled that these “generalized discovery requests” were “facially over broad as well as irrelevant.” Lastly, seemingly as a concession to the largely defeated Plaintiff, the court partially grants Plaintiff’s final discovery request. Plaintiff sought the “complete personnel files” for certain claims handling supervising personnel involved in the claim. As with the other requests, Defendant objected citing the “personal, confidential, private information” that these files held. Significantly, the court recited that “‘confidential’ does not equate to ‘nondiscoverable’ or privileged.” Thus, the court granted Plaintiff’s motion to compel such personnel files, although it concluded this grant by limiting it to information from the files that specifically pertains to the employees’ “background, qualifications, training and job performance” and explicitly excluded any “sensitive personal or medical information” regarding these individuals. By the end of its succinct seven-page opinion, the District Court for the District of Kansas handed down many valuable lessons for future parties engaged in discovery-based litigation. Among them: (1) The work product doctrine will not prevent production if litigation is reasonably anticipated; (2) Request documents in the form desired or risk a landslide of “unusable” documents; (3) Be careful, diligent, and precise in your word choice – both in your pleadings and your document requests; (4) Private/Confidential does not mean Privileged/Nondiscoverable. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts where she earned her B.A. in English and Political Science. She will receive her J.D. from Seton Hall University School of Law in 2015. After graduation, Nicole will serve as a clerk to a trial judge of the Superior court of New Jersey in the Morris-Sussex Vicinage. Want to read more articles like this? Sign up for our post notification newsletter, here.

It is a known fact that electronic discovery is costly. For which party, however, is e-discovery costly? Does the cost of e-discovery ever shift to the other party or is it shared amongst the parties? The United States District Court for the Eastern District of Pennsylvania recently considered the cost-sharing question in the case of Cochran v. Caldera Med., Inc., when the defendant’s made a motion requesting to share the burden of costs with the plaintiffs. The defendant argued that it had limited resources and estimated that it would cost $500,000 to collect and produce the ESI in response to the document requests. The judge ultimately denied the defendant’s request, but why? The court began with the presumption that each party must bear its own discovery costs. The judge first addressed the law under Rule 26(b)(2)(B), where the court has the discretion to grant cost sharing and other relief if the producing party shows “that the information is not reasonably accessible because of undue burden or cost.” Information is found to be accessible if it is stored a readily usable format. The defendant did not provide any documentation in support of its estimate or identify what portion of this estimate was attributable to retrieving accessible information or reviewing documents for privilege, both of which tasks are typically not subject to cost sharing. Without this evidence, the court held that the defendant failed to show that the ESI was not reasonably accessibly as required to allow cost sharing under Rule 26. The court next considered cost sharing under Rule 26(b)(2)(C)(iii), which permits cost sharing if the court determines that “the burden or expense of the proposed discovery outweighs its likely benefit. The court held that the plaintiff document requests were relevant and material information. Thus, using the proportionality factors from Rule 26, held that the burden on the defendant did not outweigh the importance of the discovery and the seriousness of the injuries alleged by the plaintiffs and the defendant must pay. The moral of the story is that cost shifting between parties can only be considered in limited situations according to the FRCP 26. They are if inaccessible data is being requested for production, or if proportionality supports it. Keep this in mind when making your next motion for cost sharing. Click here for a look at Federal Rule 26. Amanda is a third year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple. Want to read more articles like this? Sign up for our post notification newsletter, here.

Philips and Hunt may have been debating the ownership of the tagline “Sense and Simplicity,” but it seems the U.S. District Court for the District of New Jersey was more interested in exploring the sense and simplicity of Rule 26 of the Federal Rules of Civil Procedure when it handed down the ruling in Koninklijke Philips N.V. v. Hunt Control Systems. After noting that Rule 26 permits a broad scope of permissible discovery, Magistrate Judge James B. Clark, III held that a responding party need not use every tool in their toolbox in order to comply with a Fed.R.Civ.P. 30(b)(6) deposition request. In his memorandum opinion, Judge Clark held that an alternative approach to ESI collection, as requested by Hunt, was burdensome and likely to be unproductive. The collection was such a burden, in fact, that Judge Clark granted Philips’ motion for a protective order against further such requests. Hunt had previously interviewed “a Philips IT/ESI discovery professional” regarding Philips’ ESI practices. Months later, Hunt noticed a deposition for an IT witness claiming that Philips’ responses for eight questions were not adequately answered by the interviewee. Philips objected to the deposition request and petitioned the court for a protective order. Hunt argued that the IT deposition was necessary in order to discover whether Philips was using appropriate search tools for the ESI discovery requests. Hunt’s argument was supported by an IT professional who opined that Philips’ “cloud-based IT structure” and Philips’ “sophisticated and comprehensive state-of-the-art document search and location tools” meant that Philips was obligated to use a particular method to accommodate Hunt’s electronic discovery requests. Hunt further argued that the deposition did not create an undue burden on Philips so as to outweigh the likely benefits. In seeking a protective order, Philips counters that the provided answers were accurate and that Philips has consistently used “a custodian-based approach to collecting ESI” and thus, shouldn’t be required to employ alternative approaches at the request of Hunt. The court agreed with Philips, citing three individual reasons. First, the Court found that Hunt failed to carry its burden of showing that Philips’ production has been materially deficient. Significantly, Judge Clark wrote that just because Hunt was dissatisfied with the result of Philips’ production, such dissatisfaction was “not enough to reopen the door to the collection of ESI discovery under an entirely different method.” Because Philips’ responses were true and accurate, there was “no compelling reason” to force Philips to use Hunt’s preferred method of production. Second, the court held that even if an alternative approach to ESI collection was more appropriate than Philips’ “custodian-based” search, Hunt still failed to produce evidence showing that conducting another search under their preferred methods would substantially alter the results Philips already produced. Again, Judge Clark takes the opportunity to emphasize that employing multiple methods of production would be “duplicative” and “an inefficient use of time and resources.” Third, and most importantly for future cases involving these circumstances, Judge Clark wrote that it was not Hunt’s requested deposition that caused an undue burden on Philips, but rather “the possibility of opening the door to more (and likely unproductive) discovery with no apparent end in sight.” Putting a stern period on the end of a judicial statement, Judge Clark concluded by noting that the proposed deposition contained only a “marginal benefit” to Hunt that is “heavily outweighed” by the “tremendous burden” to Philips. Judge Clark made it clear (and seemingly warned future litigators) that the court will not entertain duplicative and seemingly petty disputes over the method of e-discovery production, so long as the information produced is not “materially deficient.” In light of this decision, parties requesting discovery would be wise to make their requests as specific as possible in the first instance, including a specified or desired approach to collecting ESI. Such specificity (accompanied with reasonability) may result in more beneficial discovery as well as preventing the scorn of wasted judicial time. Nicole was a 2010 magna cum laude graduate of Northeastern University located in Boston, Massachusetts, where she earned her B.A. in English and Political Science. In 2015, Nicole will receive her J.D. from Seton Hall University School of Law. After graduation, Nicole will serve as a clerk to a trial judge of the Superior Court of New Jersey in the Morris-Sussex Vicinage.

This case involves a contractual dispute worth $41 million between Juster and North Hudson Sewerage Authority (NHSA). Juster issued a request for production of documents that included 49 requests for documents and a list of 67 proposed search terms. Some of these terms included words such as “fee,” “debt,” “tax,” and “SEC.” NHSA argues that the court should grant a protective order because it already produced 8,000 pages of documents and felt these search terms were too vague. Additionally, NHSA stated that if the court did not grant its protective order, the cost for producing these documents and running the searches should be shifted to Juster. The court did not agree with NHSA’s claims. Not only was there a lack of evidence that the data requested here was inaccessible, the court also applied the seven-factor test set forth in Zubulake v. UBS Warburg. This case has been adopted by the Third Circuit in cases that involve fee shifting. The Zubulake factors include: The extent to which the request is specifically tailored to discover relevant information; The availability of such information from other sources; The total cost of production, compared to the amount in controversy; The total cost of production; The relative ability of each party to control costs and its incentive to do so; The importance of the issues at stake in the litigation; and The relative benefits to the parties of obtaining the information In applying the Zubulake factors to this case, the court held that fee shifting is not warranted. The requests for electronically stored information (ESI) were tailored, as the searches were restricted to a specific time period (2011-2012). Second, it is unknown if this information is available from other sources. The third, fourth, and fifth factors are concerned with the costs associated with the request for ESI. Here, the court found that given the amount of damages at stake, NHSA’s ability to absorb the costs of the ESI requests, and the projected costs are not substantial enough to justify fee shifting. The fact that the litigation had $41 million at issue and the cost of running the keyword searches was approximately between $6,000 and $16,000, the court felt fee shifting would be inappropriate. The final factors are not relevant to this litigation as this is a private contractual dispute between two parties and no public policy is implicated. Overall, these factors weigh heavily in favor of Juster. As a result, this case illustrates that courts are reluctant to sway from the idea that it is the responding party that bears the costs in complying with discovery requests. Only when there is an undue burden on the responding party, or inaccessibility of information, will the court consider fee shifting. Yet, given today’s society, most information is accessible. Additionally, when both parties have comparable discovery requests and both agree to pay their own costs in producing discovery, fee shifting is even less likely to occur. Jennifer Whritenour received her B.S. in Political Science and History in 2011 from the University of Scranton. In May 2014, she received her J.D. from Seton Hall University School of Law.