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 May 18-24. Here’s what’s happening.

On the EDRM Blog, Michael Berman and Marris Hoffee wrote about two motions in Milne v. ProAll Int’l. Mfg., Inc., one of which is fairly straightforward. The other takes an unexpected turn. Let’s start with their first post on the case.

In this matter, the plaintiffs brought tort claims, including fraud, against the defendants who filed a motion to compel further responses to requests for production. They claimed that the plaintiffs “refused to produce text messages in a workable format” and that produced messages were filtered, edited, and lacked useable metadata, contrary to the parties’ ESI protocol.

The plaintiffs responded that they produced “all responsive text messages within their custody and control,” used an IT professional to export the messages with “full metadata” that complied with the protocol, and denied that the messages were filtered or edited. The plaintiffs also asserted that the defendants did not show any “relevant” metadata was missing — and this point will prove critical in the court’s decision to deny the motion, which included these citations.

• “A plaintiff’s mere suspicion that additional documents must exist is an insufficient basis to grant a motion to compel.”
• “Absent evidence that [the defendant] is withholding documents in its possession, the court cannot issue an order compelling [the defendant] to produce documents it states it does not have.”

While the defendants said the plaintiff’s production format made it “challenging” to review relevant text messages, the court ruled the defendants did not show the plaintiffs failed to comply; and although the defendants suspect that relevant, responsive information was missing, the plaintiffs said they have produced all responsive text information. Here, the court issues an important reminder that the party moving to compel has the initial burden of demonstrating relevance and “the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.”

Bad blood in a good faith meeting?

That brings us to the next post, which covers the plaintiffs’ motion for discovery sanctions. It was denied when the court found the plaintiffs, as local rules require, had not held a good faith conference and other procedures before filing a discovery motion. Why? The defendants claimed the plaintiffs had unleashed a string of profanity at them during a meeting to confer about the motion. That conduct was enough for the court to set aside the plaintiffs’ argument it had tried to counsel in good faith before filing the motion, citing 15 emails, two Zoom conferences, and a proposed stipulation sent to defendants.

From the court: “Plaintiffs’ counsel directed “strong profanity” at counsel for Defendants while meeting and conferring about the subjects of the Motion … One of Defendants’ counsel further attests that Plaintiffs’ counsel issued threats to “triple the [settlement] demand” to make the suit impossible to settle if Defendants refused to comply with Plaintiffs’ counsel’s demands … Plaintiffs’ counsel concedes he used profanity, but denies he used the specific profanity or threats alleged by Defendants’ counsel.”
In conclusion, the court said the plaintiffs’ failure to comply with local rules “was not a technical defect nor an oversight; rather, it was an intentional, tactical choice that sabotaged any chance for a good faith effort by both sides to attempt to resolve some or all of the issues raised in the Motion.” Moral of the story: be professional and leave the intimidation tactics at home.

Other recent eDiscovery news and headlines:

• Commentary on Discovery of Mobile Device Data from The Sedona Conference (eDiscovery Today)
• Fake Citations, Real Sanctions: AI Hallucinations Spark $31K in Sanctions (Minerva26)

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.