How courts address relevance and proportionality concerns given the volume of ESI often sought in discovery

More is Less?

Author: Nick Plinio

Case Citation: JWD Automotive, Inc. v. DJM Advisory Group LLC, 317 F.R.D. 587 (M.D. Fla. 2016)

Employee/Personnel/Employer Implicated: Insurance company, Facsimile services company, Custodian of ESI
eLesson Learned: Courts have the power to modify and even craft original protective orders to ensure relevance and proportionality in ESI sought during discovery.

Tweet This: Go-Fish! Courts will be quick to tailor protective orders to ensure relevance, proportionality and combat the “fishing expedition” when parties seek ESI in discovery.

When it comes to ESI, the sheer volume of information “potentially” available to the parties in litigation can be misleading. Put another way, just because someone’s hard drive might contain relevant information, does not mean that the entire hard drive will be discoverable and subject to forensic investigation. In fact, courts have the authority to limit the scope of discovery and issue protective orders to ensure that only relevant and proportional information is turned over, especially when a third party is the one subpoenaed for the information.

This was exactly the case in JWD Automotive, Inc. v. DJM Advisory Group LLC, 317 F.R.D. 587 (M.D. Fla. 2016). In that case, FaxVantage, a third party subpoena recipient, testified that information Plaintiffs sought could be contained on a hard drive it had previously turned over. However, FanVantage also indicated that some of the information on the hard drive was confidential and privileged. Plaintiff then asked the court to enter a protective order regarding computer forensic discovery, which it had previously negotiated with FaxVantage. Specifically, Plaintiff asked that the court develop a process by which Plaintiff’s “non-lawyer computer forensic expert”, would copy the entire hard drive and “examine any Electronic Data that exists or may have been deleted” with regard to several enumerated categories of documents and information. Defendants meanwhile, issued a competing protective order questioning the relevance and proportionality of the ESI to be extracted.

The Court ultimately developed a process by which to extract the data, however, it took issue with Plaintiff’s request for a number of reasons. In a footnote, the court stated that it had “serious reservations” concerning the process by which Plaintiff’s expert was expected to extract ESI from the hard drive. This was mainly because (1) the expert was a non-lawyer and thus not presumptively competent to make relevance determinations and (2) neither side addressed the specifics of the forensic processes to be utilized. 

The court decided to take these considerations into account, along with the Defendant’s relevance and proportionality concerns, when crafting the procedures it outlined. For example, discovery would be limited to certain fax lists provided to Plaintiff by FaxVantage. Additionally, Plaintiff’s expert was to submit all extracted and prepared information to FaxVantage counsel for review.  If within 14 days FaxVantage had any objections to the information, it would meet and confer with Plaintiff to attempt to resolve the issues. Further, Plaintiff’s expert could not disclose to any party other than FaxVantage information or data accessed on the hard drive not described by the lists. The expert would also retain the copy of the hard drive and either return or delete the data on FaxVantage’s request.

E-Discovery Takeaway

What’s the takeaway? With E-Discovery playing a major role in modern litigation, courts are becoming more aware of the consequences of the “fishing expedition” and are more apt to address overbroad discovery to prevent abuse. In DJM the court was quick to point out issues with Plaintiff’s proposal, stating that “[t]he potential relevance of the ESI sought is not readily apparent to the Court given the limited role that FaxVantage appears to have played in connection with this case” and that until Plaintiff could demonstrate that the information sought (i.e. the entire hard drive) was relevant, “this Court will not adopt or approve a proposed protective order that is (1) is tantamount to a fishing expedition and (2) is susceptible to abuse and misuse for purposes unrelated to this litigation.”

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