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E-Discovery — If not transparency, how about translucency?


Florida is sunny and a great place to live or work; but we can be a little slow to except new things.

Florida Rules of Civil Procedure were amended a couple of years ago to include at least the mention of electronic discovery. Sadly, the changes did not treat ESI or e-discovery as particularly novel and they failed to recognize the single most important obstacle to the e-discovery process – cooperation. And, the only real way to use the e-discovery rules effectively is to convince the trial judge to elevate the case to one of “complex litigation”. Do that and you may find yourself with e-discovery rules, but on a fast track “rocket docket”.

I recently read a very refreshing case in which a Magistrate Judge recognized the importance of cooperation and an element of transparency that is essential to the e-discovery process; Stage v. Restoration Hardware, Inc. et al, No. 2:2014cv00077 (S.D. Ohio 2015).

Scales of justice

The case involved allegations of wrongful discharge of Jennifer Stage by Restoration Hardware.

The plaintiff alleged that Restoration had failed to produce all responsive documents and she wanted the Court to hold a hearing where each custodian from whom a collection was made would have to testify about the efforts and process of the collection. The record demonstrated that the key word searches done by the defendant were inadequate and those were refined and expanded. Still, the defendant’s production contained incomplete documents and missing records.

The defendant also destroyed the plaintiff’s emails within two weeks after her termination; a practice it states is a standard operating procedure for record retention such as employee emails. The defendant also claimed to have much less numbers of instant message records than it ultimately produced after multiple demands.

Overall, it appeared to the Court that Restoration Hardware had not been as forthcoming with what discovery existed as the Court felt it should have.

What did the Court do?

The Court ordered a 30(b)(6) deposition to try and discover what data existed, where it was stored, how it was kept and what procedures were used in the collection of documents for discovery. A perfectly good, economical and thoughtful solution to settling everyone’s mind about the defendant’s collection, culling and production process.

And, why not?

Defendants and their lawyers usually scream bloody murder and talk about brick walls and such things whenever it is suggested they share the methods and procedures used in collection and culling of production. One would think these efforts were so sacrosanct that opposing parties should be struck down with fire from above for even suggesting such a thing.

I was recently involved in a discovery discussion in a case in which it is pretty clear, at least to me, that the defendant’s production is less than complete and their collection efforts appear less than well organized. It was suggested they allow us to depose those persons with the most knowledge about the collection and culling; if for no other reason than to allow us to move forward from continuing to doubt their production at every turn.

Their response?

No foundation for such a request. There are no Florida cases that permit such a deposition. They don’t want to allow it.

Not, a mention of cooperation or transparency. Not a discussion about clearing up the issues relating to discovery. Not even a defense of the completeness of their discovery.

Simply a brick wall.

We need more judges willing to crack open the brick walls to permit some element of translucency, if not transparency.

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