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 25-31. Here’s what’s happening.

On eDiscovery Today, Doug Austin writes about Hall v. Warren, a class action in the Western District of New York alleging excessive force and failure to address misconduct by a city police department. The magistrate judge directed both parties to meet and develop a proposed ESI protocol, and if the parties weren’t able to agree, they must submit separate proposals for the judge to decide which portions would become the approved ESI order.

The magistrate judge’s alternate scenario played out, and the defendants objected to the court-drafted ESI order, filing a motion that the ESI order must be vacated because of errors. A district judge overruled the objections, affirming the magistrate judge’s ESI order. Austin summarizes the case opinion to illustrate why the motion failed.

• The court found good cause to require the production of metadata: “Plaintiffs argue that workflow history and metadata from the use of force reports, civilian complaints, and internal investigation files are critical to their claims of excessive force and failure to supervise and discipline.”
• The court considered circumstances that the burden of production would outweigh the value: “the parties will meet and confer to agree on a reasonable alternative if the protocol in the order creates an undue burden.”
• The court rejected a defense argument that it failed to consider the extraordinary cost of compliance: “As the City Defendants acknowledged, Local Rule 26(e)(6), allows the Court to ‘apportion the costs of discovery or presentation of ESI, including discovery of ESI that is not reasonably accessible, upon a showing of good cause, or unequal burdens, or unreasonable request.’ Thus, the language of Local Rule 26(e)(6) allows the court to apportion ESI discovery costs in limited circumstances, even absent an agreement between the parties.”
• Other arguments: The city argued the court failed to consider they do not have the technical ability to Bates stamp or redact items produced in native format to comply with the ESI order, however the court responded that the ESI order “does not require Bates stamping of native files” In addition, the defendants argued the court erred again by ordering production to be compatible with Relativity, the plaintiff’s ESI program. The court rejected this argument too, stating: “the ESI Order is not inflexible… if compatibility with Relativity is an undue burden, then the ESI Order provides a mechanism by which the City Defendants can seek an alternative form of production.”

The takeaway here is that parties are encouraged as much as possible to collaborate and together on a mutually-agreeable ESI protocol. Even if each side has to give a little to take a little, the protocol emerging from a meet-and-confer will likely be a better outcome than one unilaterally imposed by the court.

Other recent eDiscovery news and headlines:

• Court Reminds That Proportionality Is Central to Modern Discovery (New York Law Journal)
• Judicial Approaches to Acknowledged and Unacknowledged AI-Generated Evidence (Science and Technology Law Review)

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.