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This Week in eDiscovery: Defendant Granted Modifications After “Carelessly” Stipulating to ESI Order; How to Master New eDiscovery Platforms

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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 week of May 20-26. Here’s what’s happening.

Motion Granted to Modify ESI Order Regarding Hyperlinks

This month, U.S. Magistrate Judge Thomas S. Hixson granted a defense motion to modify the ESI Order in re StubHub Refund Litigation that required hyperlinked documents to be produced as if they were attachments to emails.
The parties and the court had agreed to an ESI Protocol that said “when emails are produced, they should include parent and child files, with the parent-child relationship preserved, and child files are defined to include ‘hyperlinks to internal or nonpublic documents.’” The order also stated that it “may be modified … by the Court for good cause shown.”

A year ago, the defense was admonished by the judge after acknowledging it hadn’t preserved the parent-child relationship and couldn’t provide specific reasons why it couldn’t produce most of the linked documents. Judge Hixson said if a “party learns that a so-ordered discovery agreement has become impossible to comply with, the party should promptly move for relief, with a good showing that despite its best efforts, compliance is impossible.”

In Judge Hixson’s view, StubHub learned from its mistakes with this motion and demonstrated good cause. After “hundreds of hours spent trying to find linked documents,” StubHub showed that the hyperlink requirement is “technologically impossible to fulfill most of the time.” As a compromise that the Court accepted, StubHub offered the plaintiff to provide a list of up to 400 additional hyperlinked documents that it will devote all reasonable resources to manually retrieve and produce as a child to a parent email.

The plaintiff unsuccessfully moved for sanctions: “Because StubHub has persuaded the Court that compliance with that requirement was actually impossible for most documents, the Court thinks the wrongdoing was stipulating to do something without conducting an adequate investigation into whether it was possible.”

Even though StubHub, in the Court’s view, “carelessly stipulated” to the ESI Order, the order’s modification provision also gave the defendant a way out of sanctions.

“StubHub’s decision to stipulate to the hyperlink requirement in the ESI Order was an unfortunate mistake. But mistakes happen, and life – and litigation – must go on. The parties should put this discovery issue behind them and turn their efforts to class certification and the merits,” Judge Hixson wrote.

Best Practices for Mastering New eDiscovery Platforms

Emilie Fuller, a portfolio manager at Array, recently shared her tips for mastering new eDiscovery platforms, drawing from our collective experience. While the learning curve can be steep, each platform has unique features and capabilities that can be leveraged by using these strategies. Among them:

  • Run the same data across different platforms, so you can understand how each platform handles the data.
  • Create a variety of educational materials to support your team’s diverse learning styles.
  • Build a strong foundation in eDiscovery principles, workflows, and best practices, using this as a roadmap that guides you through the features of each new platform.

Other recent eDiscovery news and headlines:


Julia Helmer; Director, Client Solutions

With a decade 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.

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