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 October 21-27. Here’s what’s happening.
In-House Counsel as Custodians
Don’t underestimate how proportionality can impact discovery disputes, especially when in-house counsel is involved.
At the ACEDS Blog, Kelly Twigger writes about Dale v. Deutsche Telekom AG, a class-action suit related to the merger of T-Mobile and Sprint. The plaintiffs say that it raised costs for customers of other companies, such as Verizon and AT&T. As part of the discovery process, the plaintiffs wanted to include three of the defendant’s in-house attorneys on the custodian list, which had grown to 50 people, but the defendants pushed back. After months of negotiating, the two sides couldn’t reach an agreement.
The magistrate judge ruled against the plaintiffs. Partly because there was a question of whether the three attorneys were relevant to the case. Their work appeared to be connected to preparations for the merger but didn’t affect how prices were set, which is what the suit concerned. Even if they might have useful information, the judge noted, there were 50 other custodians who might also have it. Plus, the judge noted, listing counsel as custodians would create much more work in terms of reviewing privilege claims. A lot of their documents would probably be considered work product, so the effort of going through the collection, processing and review of these documents just to withhold them as privileged would likely be burdensome to the defendants while not generating much new unique relevant content for the plaintiffs. Further, if the court gets tied up with the review process, other cases would be delayed.
As the judge wrote:
But the inescapable fact is that a court does not have available the vast resources that individual litigants often have at their disposal. This is not to suggest that a lawyer should ever sublimate a client’s legitimate interests to a court’s “convenience.” But discovery demands are not permissible merely because a lawyer has a desire for information.
What if a party decides that in-house counsel really does need to be treated as a custodian? Twigger recommends a focused approach: start with a custodian list that delivers what is needed and then request to add in-house counsel when the party can demonstrate a legitimate need. The original list of custodians may be able to supply documents that help make that case, and the court won’t be as likely to shut it down on the grounds of proportionality.
Clawback and Sequestered Documents
When one side tries to claw back inadvertently disclosed evidence, the receiving party is supposed to return, destroy or sequester the documents as the privilege claim is being resolved. But can the receiver view and use those documents to oppose the claim?
The Sidley Blog features a case where that argument came up. The judge sided against the receiving party, and like the case above, it came down to proportionality. The receiver’s request to use the information in question (in briefing, for example) would raise the risk of privilege being waived. If that became the standard, then going forward, parties would conduct more extensive, time-consuming privilege reviews, which would slow down cases.
The judge did have one caveat. No one had used the information in a filed brief or deposition testimony before the clawback attempt. If the parties had done so, it would have been impracticable or unreasonable to prevent discussion as the privilege claim was resolved.
Other recent eDiscovery news and headlines:
- Produce the Litigation Hold Notice, Court Orders After Spoliation: eDiscovery Case Law (eDiscovery Today)
- Dilatory Objections to Corporate Designee Topics Were Too Late; “Blanket” De-Designation Request Was Denied (EDRM Blog)
- As AI Hits E-Discovery, Lawyers Move From Biglaw To A Boutique (Original Jurisdiction)
Julia Helmer; Director, Client Solutions
With more than 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.
