Introduction
The Winston & Strawn LLP eDiscovery and Information Governance Group (the "eDiscovery Group") is pleased to be able to offer our insights into the decisions and developments that have taken place in the first half of 2024 in the e-discovery, information governance, and privacy arenas.
We hope that the following summaries and information will continue to aid your understanding of these important and rapidly evolving areas of law, and we look forward to helping you stay informed about upcoming e-discovery developments during the remainder of the year.
As the saying goes, the more things change, the more they stay the same. So far in 2024, the most salient and impactful trends are continuations of patterns we saw developing last year. From our review of the cases, we perceive that a substantial number of courts are being asked to evaluate preservation and spoliation issues around mobile device messaging, especially text messaging and WeChat. Preservation of text and mobile messaging is notoriously tricky, and often an afterthought for litigators stuck in a 2010 mentality about the presumptive relevance of such communication mediums. Courts are guided by the facts of each case, including testimony that witnesses either did or did not use text or mobile messaging to communicate about matters relevant to the subject matter. A number of the cases below, including AC Bluebonnet, LP v. Suther Feeds, Inc., Capital Senior Living, Inc. v. Barnhiser, and Goldstein v. Denner, reinforce the notion that counsel must be diligent to determine whether their clients may have texted about matters relevant to the litigation as early as possible and then take reasonable steps to preserve any such messages that may exist.
Another continued theme of increasing importance is the pervasiveness of modern or hyperlinked attachments. An increasing number of courts are wrestling with disagreements between the parties about how these artifacts should be treated by a producing party, sometimes guided by the parties' own agreement and sometimes by common sense or the application of proportionality factors. Whether the act of "sending" a file by inserting a "link" (or another form of locator) into a "message" (which can be of the email, chat, or instant variety) constitutes "attaching" the file to the message in the familiar manner of an email and attachment is almost philosophical, and not practical, in nature. Courts nevertheless are showing a desire and willingness to be guided by practical concerns, including whether associating a file stored externally from the messaging application with a transmittal message is technically possible or proportionally burdensome. In re Insulin Pricing Litigation and In re Uber Technologies, Inc., Passenger Sexual Assault Litigation both illustrate this approach. This area is likely to remain an area of focus as the ability to preserve, collect, and produce hyperlinked files differs among ecosystems (e.g., MS Office 365, Google Suite, Box.com) and is subject to continual developments.
We have yet to see any decisions regarding the use and adoption of Generative AI as part of the discovery process. Several of the leading e-discovery software and service providers have introduced Generative AI capabilities into their products. With this said, guidance around the use of the newer tools is in its early stage and, thus, lawyers and technologists appear to be struggling around when, whether, and how to use Generative AI for relevancy, privilege, and issue tagging. By way of example, there is no consensus regarding best practices for the generation, testing, and validation of a prompt, although some of the providers have begun to offer additional guidance around this important topic. Price also remains a significant factor that may preclude the use of these tools on larger data sets, where the cost to run a prompt can be as high as $0.20 to $0.75 per prompt per document. We anticipate the pricing to be reduced over time as the major foundational model providers (e.g., OpenAI), introduce newer, cheaper, and more cost-effective models.
IN MEMORIAM
With sadness, we note the June 2024 passing of Craig Weinlein, the Executive Director of The Sedona Conference. We want to recognize Craig for his dedication and leadership to The Sedona Conference and its mission to move the law forward in a reasoned and just way. We offer Craig's family and the entire Sedona Conference family our sincerest condolences.
Case Summaries
AC BLUEBONNET, LP V. SUTHER FEEDS, INC.
#Rule37e; #Sanctions; #Spoliation; #Adverse-Inference; #Text-Messages
In AC Bluebonnet, LP v. Suther Feeds, Inc., 2024 WL 940501 (D. Neb. Feb. 16, 2024), United States District Judge Joseph F. Bataillon denied the plaintiff's motion for Federal Rule of Civil Procedure 37(e)(2) sanctions for failing to preserve text messages and other ESI that were pertinent to the case.
In the underlying litigation, the plaintiff alleged, among other things, that the defendant violated the parties' non-solicitation agreement. During discovery, the plaintiff learned that one of the defendant's key custodians had deleted text messages that he sent and received during the non-solicitation period. Indeed, while the key custodian testified during his deposition that he did not manually delete text messages, he also admitted that he was unaware his cell phone had been set to auto-delete messages older than one year; that he therefore had not disabled said function; and that, as such, messages from the non-solicitation period had been auto-deleted. In addition, the evidence presented also indicated that the defendant never asked him to check the auto-delete setting on his mobile phone. The plaintiff was able to obtain some of the messages it sought via other means, but others were permanently lost. The plaintiff therefore moved for sanctions under Rule 37(e)(2), alleging the defendant intentionally destroyed the messages and seeking an adverse instruction that the jury could presume the lost messages were unfavorable to the defendant.
Sanctions for spoliation under Rule 37(e)(2) require a finding that (i) ESI that should have been preserved in anticipation of litigation was irretrievable lost because a party failed to take reasonable steps to preserve it; and (ii) the party did so with an intent to deprive another party of the use of that ESI during the litigation. Relying on this guidance, Judge Bataillon readily found that the defendant had failed to take reasonable steps to preserve its employee's messages, but also determined that the evidence did not support a finding of intent. Here, the plaintiff had argued that "the Court should presume [the defendant] intended to deprive it of information from its failure to ensure the preservation of the text messages..." Judge Bataillon disagreed, stating that "[w]hile it may be true that {the defendant] could have asked [the key custodian] to check the auto-delete setting on his phone at the outset of the litigation, its failure to do so does not mean it acted with the intent to deprive [the plaintiff] of discoverable information. The most the evidence supports is that the automatic deletion of [the key custodian's] messages was an unfortunate oversight, not an intentional act." As such, Judge Bataillon held that the sanction of a presumption of unfavorability was not warranted, and he denied the plaintiff's motion.
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