E-Discovery Insights – Clearwell Systems, Inc.

Moody v. Turner: An E-Discovery Battle with No Winners

BY VENKAT RANGAN ON DECEMBER 3RD, 2010

The electronic discovery blogosphere is filled with analysis of the recent opinion by
Judge Sandra Beckwith of U.S. District Court for the Southern District of Ohio, on
the Moody v. Turner case. What is striking about the case is that it reveals a huge gap
in understanding the pitfalls of prolonged discovery disputes in the context of attempts
by thought leaders to prevent exactly the issues elicited in this opinion. As the
excellent post by Ralph Losey indicates, in this case, it is an affront to have this play
out in front of Judge Beckwith, a signatory to The Sedona Conference Cooperation
Proclamation.

In reviewing the facts of the case, here are highlights on some of the process missteps:

Lack of Early Data Analysis

It is not obvious to some how important it is to perform an early analysis of the data before agreeing to search ESI for
a certain number of custodians and apply certain keywords. This case illustrates three reasons why early data
analysis is critically important.

First, the producing party must identify and communicate the right list of custodians. If there is any change or
expansion of scope, that needs to be communicated as well. In this case, the Defense team, at their pre-trial 26(f)
conference with the Plaintiffs, agreed to produce ESI for twenty six custodians, but chose to send Preservation
Notices to larger number of individuals. While this act by itself is commendable, the lack of prompt communication to
the Plaintiffs is certainly a misstep that the Plaintiff chose to latch on to as incomplete production of ESI.

Second, the producing party must have a handle on scope of searches before committing to “run them”. In reviewing
the document Case: 1:07-cv-00692-SSB Doc #: 43, Exhibit 7, it is apparent that the twenty production requests in
that report are not trivial. An early analysis of both the data as well as searches at least on a small sample would
have helped the producing party understand the scope and challenges of running those searches.

Third, the producing party must evaluate their collection, search, and production methods to evaluate the feasibility of
producing metadata. As evidenced in the Plaintiffs’ motion (Doc-89, Page 19), it is clear that the Defense did not
produce TIF images along with searchable text. However as noted in Doc-118, Page 18, footnote 10):

“In any event, parties are generally not required to produce the metadata of their data sets. See Wyeth v. Impax
Labs., Inc., No. 06-222, 2006 WL 3091331 at *2… Turner has produced all ESI in TIFF format, except for Excel
spreadsheets which were produced in native format given the substantial size of many of the spreadsheets (which, if
in TIFF format, may print across hundreds of pages). Judge Hogan therefore rightfully declined to compel Turner to
produce any additional metadata.”

This is a fairly common request and one that the Plaintiffs could have placed in their pre-trial 26(f) conference.

Out of Control Production Requests

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In reviewing the aforementioned court document, Doc #: 43, Exhibit 7, one can glean a wealth of information on the
nature of searches requested by the Plaintiffs and the responses by the Defense team. The immediate problem
evident in these requests is an issue raised by the Defense team – that the search requests are overly broad. Some
of the search terms are “plan”, “method”, “rate” and “account”, which are certain to hit a very large number of
documents. See below for one of the requests.

Production 1-Item 2: All documents other than emails that can be electronically or digitally searched as containing
one or more terms that concern the Plan in any way or cash balance pension plans and contain the word “accrual,”
“benefit,”, “benefit accrual,” “accrual of benefit”, “accrual methods,” … “calculate”, “calculation”.

This goes on and on, for about eighteen pages. Combined, the twenty production requests would clearly hit almost
every collected document (a total of 118GB of documents), thus making a follow-on privilege or confidentiality review
prohibitively expensive. It is the lack of specificity in these searches that makes the discovery request overly broad.
On the other hand, the response from Defense appears to be also poorly constructed. In their response, what we see
is the same boiler-plate text, which didn’t escape the notice of the Plaintiffs and the court.

“Defendants object to this Request because it is overly broad, unduly burdensome, seeks documents that are neither
relevant nor likely to lead to the discovery of admissible documents and (because Plaintiffs define “documents” to
include electronic or computerized data compilations) seeks electronic documents that are not reasonably accessible
due to undue burden and/or cost. Defendants further object to this Request because it implicates documents
protected by the attorney-client and/or work-product privilege and any such documents will be withheld from
production” Know more on legal document discovery.

What would have helped the Defense’s case would be actual data supporting their claims. For example, if the
defendants were to tabulate that words such as “plan” and “benefit” and provide actual document and/or hit counts, it
would have bolstered their claim. As expected, this caused the Plaintiffs to submit a further filing, Doc-89 with a host
of complaints, chief among them:

Defendants reported only (1) the total number of unique documents captured by the search of 17 terms and (2) the
number of documents that contained the term “cash balance” but none of the Plaintiffs’ other terms. See Doc. 77-
10 at 2.

Furthermore, the Plaintiffs appear to be on the right track, recommending:

On October 14, Plaintiffs wrote to Defendants and proposed an “iterative search process” to decide on a final set of
search terms.

It seems clear in the on-going discovery disputes, an iterative search process was perceived as contrary to zealous
advocacy of their client’s positions and not as a path to resolving further disputes, much as the Cooperation
Proclamation suggests. In this context, engaging in a search expert is essential – someone who can modify the
search to include more restrictive criteria to limit your search results. Why bother running an open-ended search and
produce 29.4GB of useless junk, when you can combine these terms with Boolean, proximity, and other searches?
The types of searches, and what each can offer, is a topic that the members of EDRM tackled in formulating
theirEDRM Search Guide, which is a must-read for anyone attempting to construct e-discovery searches.

Proportionality Arguments Without Strong Basis

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An important point to note is that any discovery request that uses inefficient processes and inappropriate
technologies will certainly result in undue burdens and cost. It appears that the Defense team did not offer proper
cost estimates (arguments put forth in Doc-77-10 notwithstanding), and just pushed an undue burden/cost argument
with the hope that the courts would absolve them of discovery obligations. At the same time, the Plaintiffs did seem to
have over-reached a bit on extending their discovery disputes with the hope of reaching a favorable outcome. Two
examples of such attempts are:

1. Upon Defense producing the documents (Doc-118),

Turner has produced every responsive, non-privileged document obtained through the email ESI searches that
related to the Plan; these comprise 4.1 GB, or more than 40,708 pages of documents.

The Plaintiffs counter with:

“Plaintiffs maintain that Turner should be compelled to produce the metadata for the email ESI it has produced
because otherwise they allegedly “cannot know whether Defendants have searched all 33 custodians’ email files” and
“cannot confirm whether any email files were electronic in origin (rather than printouts of emails) or determine whose
files they came from.”

As noted earlier, request for metadata and the feasibility of producing it must be negotiated specifically in the 26(f)
conference.

1. The attempt of the Plaintiffs to expand discovery, to compel any and every third party, including Defense’s former e
discovery law firm, as well as inspect “shared network drives”, “non-shared drives” etc.

“Judge Hogan recognized that Turner should not be compelled to probe through the recesses of its internal electronic
systems for even more ESI on top of the 47,000-plus hard copy documents and the 40,000-plus pages of ESI it has
produced – because those additional searches are not likely to lead to the discovery of any evidence relevant to
plaintiffs’ claims. Judge Hogan was presented with the gory history of Turner’s efforts to search through “shared
network drives” and “non-shared drives,” emails and backups. He found these efforts to be sufficient, and rightly
rejected plaintiffs’ demand for additional ESI.”

One can see that Plaintiff’s attempt to drag the electronic discovery efforts into an endless battle was
counterproductive.

Final Takeaway

The Sedona Conference Cooperation Proclamation rightfully recommends “Jointly developing automated search and
retrieval methodologies to cull relevant information”. As costs for getting to the facts escalate, a comprehensive
strategy that uses the best processes, the best technology, and a commitment to the Cooperation Proclamation is
essential for the legal system to deliver what people expect – justice based on facts. Gamesmanship as evidenced
in Moody v. Turner is detrimental to this cause.

Know more on : eDiscovery Analyzer.

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