Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of June 8-14. Here’s what’s happening.

A recent ruling from the Northern District of Georgia reminds litigants that simply stating “we searched” for responsive documents is not sufficient as an excuse for nonproduction, writes Michael Berman on the EDRM Blog, especially when the other side has done its due diligence.

What happened?

In EEOC v. Mia Aesthetics Clinic, the EEOC sued on behalf of a former employee over alleged disability discrimination and moved to compel discovery from seven custodians. The agency sought:

• Salesforce data showing what the employee did,
• Emails the employee sent to management,
• The employee’s Google voice data; and
• The employee’s communications on Slack

While a party cannot be compelled to produce documents that no longer exist or are not in its possession, custody, or control, Rule 26(g) requires a “reasonable inquiry.” Regarding each of the four categories of documents the EEOC sought, the court found Mia Aesthetics fell short of that burden, mainly because of information the EEOC provided arguing that Mia Aesthetics’s search process was insufficient.

First, regarding the Salesforce data. Mia Aesthetics said it performed a "diligent search” for the data, which it said was deleted when the employee was terminated. The EEOC challenged the argument, showing that Salesforce has a backup recovery system and arguing Mia Aesthetics didn’t detail the steps it took to search for the data. The court agreed, writing that “Simply stating that a ‘diligent’ search was conducted will not suffice” and ordering defendants to:

• Conduct a reasonable inquiry into any Salesforce data they either possess or could possess upon demand that relates to the former employee both within Salesforce itself and in any other form, including contacting Salesforce to inquire whether a backup is available and searching for Excel files that contain Salesforce data.
• Produce any documents that are found to exist and have not yet been produced to the EEOC.
• Outline in detail to the EEOC how they conducted their search and retrieval efforts for Salesforce data.

Second, regarding the emails, the defendants echoed their position on Salesforce data, saying the requested information does not exist. However, the EEOC provided two emails that had not been produced by the defendants. Similar to its response regarding the Salesforce data, the court said it “cannot evaluate whether Defendants have made a reasonable inquiry into the requests for production sought by the EEOC” and ordered the defendants to conduct a reasonable inquiry and document the steps it took.

Finally, regarding the Google Voice and Slack communications, Mia Aesthetics said it did not have possession or control of this data. Because Mia Aesthetics “made no real representation regarding their efforts to recover and produce the responsive Slack and Google Voice data” the court wrote, the EEOC wasn’t required to establish with evidence that backup technology such as Google Takeout could retrieve the data. Similar to the other documents requested by the EEOC, the court ordered a reasonable inquiry into “any Google Voice and Slack files they either possess or could possess upon demand,” including contacting both companies to inquire about potential backups, and describe their search efforts in detail.

The takeaway

As shown in this case, defensibility in eDiscovery depends on transparency. Discovery rules require, and opposing parties will seek, more than generic assurances a search was conducted—courts will demand evidence of a deliberate, reasoned search. Be prepared to show your work if requested documents and communications are not in your possession or control, including detailed steps of your search procedure.

Other recent eDiscovery news and headlines:

• The Sedona Canada Primer on Artificial Intelligence and The Practice of Law (eDiscovery Today)
• Microsoft 365 eDiscovery Updates‎ (webinar replay) (Troutman Pepper Locke)

Julia Helmer; Director, Client Solutions

With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.