Rule 34 - Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes
148 Analyses of this statute by attorneys
Navigating Social Media Discovery and Generative AI in the OpenAI ChatGPT Litigation
Association of Certified E-Discovery Specialists (ACEDS)June 7, 2024
plaintiffs point to Elon Musk, a co-founder and early investor in OpenAI, who admitted in a recent deposition in a separate action that he operates two Twitter accounts under a pseudonym.Defendants argued that the request was overbroad, not tailored as plaintiffs’ suggest, that OpenAI does not systematically collect information about personal social media accounts from its employees and Board Members, or monitor those accounts in the ordinary course of business, and that the information requested was not in its possession, custody or control. Strangely, OpenAI argued that the social media information was not within their control because plaintiffs “have identified no legal basis for OpenAI to demand its employees and Board members turn over [username] information about their personal [social media] accounts.” I’m pretty sure that whether or not there is a legal basis for providing the information has nothing to do with whether OpenAI has “control” over it as that term is defined under Rule 34 of the Federal Rules of Civil Procedure.Unsurprisingly, the Court found that the burden of actually asking OpenAI’s current directors and employees whether they have engaged in any discussions using their personal social media accounts was not burdensome and proportional to the needs of the case. Per the Court, if all current directors and employees report that they have engaged in no such discussions on their social media accounts, then defendants should certify that to plaintiffs. If anyone answers yes, the Court ordered defendants to gather and disclose that person’s relevant social media username(s). As to past employees, the Court ordered defendants to produce the social media usernames “of any such persons if Defendants know, or learn, that any that such persons have engaged in discussions on social media that might be relevant to claims or defenses in this case, and the social media username(s) of such persons are known to Defendants.”ROG 14 sought information about individuals and entities who possess or have posses
Following the Trail of Lost or Destroyed ESI with Forensic Imaging
Locke Lord LLPToyja KelleyMay 28, 2024
some federal courts have noted that forensic imaging is an expensive and burdensome process that often requires the production of privileged information, which can unnecessarily add to the expense and complexity of the case. Diepenhorst v. City of Battle Creek, Case No. 1:05-cv-734, 2006 U.S. Dist. LEXIS 48551, *10-11 (W.D. Mich. June 30, 2006). The Advisory Committee Notes narrow the scope of Rule 34(a) stating:Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circ*mstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.Advisory Committee Notes to Fed. R. Civ. P. 34. For instance, in a recent Appeals Court of Maryland decision guided by federal court protocols, the court weighed a non-party’s privacy rights against the discovery needs of that case. St. Frances Acad. v. Gilman Sch., Inc., No. 1390, 2022 Md. App. LEXIS 203, at *19 (App. Mar. 21, 2022). The court upheld the lower court’s decision in fashioning a discovery order granting in-part, Gilman’s (represented by Locke Lord counsel) demand for forensic imaging of a cell phone. Id. at *8. In that decision court noted that Gilman through its counsel, suggested a procedure that tailored search criteria to limit intrusiveness and protected the privacy of information on the device. Id. at * 9. The proposed procedure made sure “no human looks at [the data] until [counsel for the device’s owner] gets an opportunity to go through it” and counsel for the cell phone’s owner would be the first person to review data before it is disclosed to Gilman’s counsel. Id.Compelling a Forensic Image Requires More
See AlsoRule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other PurposesRule 34 - Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes | 2024 Federal Rules of Civil ProcedureRule 34 | uslawessentialsJudge Cisneros Sets Much Needed Standards for the Production of Hyperlinked Files in eDiscovery
Association of Certified E-Discovery Specialists (ACEDS)Kelly TwiggerMay 10, 2024
mphasized the importance of providing metadata that links emails to their hyperlinked documents. This requirement aims to maintain the integrity of data relationships throughout the litigation process and put the parties on a level playing field by allowing the receiving party to have the parent-child relationship maintained for review.Implications for Litigation ProfessionalsThis decision has several implications for litigation professionals managing ediscovery in complex cases involving digital communications:Enhanced Understanding of eDiscovery Tools. Legal teams must become proficient in the capabilities and limitations of tools that leverage hyperlinked files that may be discoverable like Google Drive, Vault and MS Teams.Proactive Management of Digital Evidence. The ruling underscores the need for parties to understand the potential need to produce contemporaneous versions of documents and potentially take steps to be able to preserve and produce those versions in accordance with Rule 34 of the Federal Rules of Civil Procedure.Cooperation Among Counsel. The decision highlights the importance of cooperation among counsel to resolve complex ediscovery issues, including engaging in meaningful meet-and-confer sessions to discuss the handling of hyperlinked files and related metadata.Adaptation to Technological Advances. As ediscovery technologies evolve, legal teams must stay informed of new tools and methods that can aid in the more efficient handling of hyperlinked files and other digital evidence.Key TakeawaysJudge Cisneros’s decision in In re Uber Technologies not only clarifies the handling of hyperlinked files in legal proceedings but also sets a precedent for how these issues should be approached in future cases. Key takeaways include:The importance of Knowledgeable eDiscovery Counsel: This decision came about because the Court identified the issues and sophisticated ediscovery counsel 1) put forth experts to educate the court on the scope of existing technology and 2) outlined the issues to the Court in
This Week in eDiscovery: Specific vs. General Discovery Objections, Five More States Pass Data Privacy Laws, And More
ArrayApril 25, 2024
The problem with general objections On the ACEDS Blog, Kelly Twigger analyzes Boco*ck v. Innovate Corp. as a case she says is a prime example of the importance of specificity in responses to discovery requests because of the amendments to Federal Rule of Civil Procedure 34 made in 2015.In this case, plaintiffs were served interrogatories and requests for production on May 5, 2023. The plaintiffs were granted a 15-day extension by defendants on June 5. The plaintiffs responded on the day of the extended deadline, June 20, but with seven pages of “General Objections” that lacked a specific or substantive response to even one of the interrogatories or requests for production. Two days later, defendants insisted that the plaintiffs provide proper responses by June 28, noting that by failing to provide specific responses and objections, they would waive all objections to the discovery. The next day, plaintiffs said they were “working on the responses,” would “serve the plaintiffs’ respective discovery responses on a rolling basis – most likely starting next week,” and proposed a meet and confer for July 5 or 6. Defendants replied 90 minutes later, indicating their availability to meet, but plaintiffs did not respond.On July 12, defendants filed a motion to c
International Trade Commission Seeks Feedback on Proposed Updates to Practice and Procedure
McDermott Will & EmeryApril 19, 2024
re. Such changes include:Aligning the scope of discovery found in 210.27 with that of Fed. R. Civ. Pro. 26. In particular, the proposed changes include deleting the reference to information that “appears reasonably calculated to lead to the discovery of admissible evidence” and inserting language emphasizing that discovery must be proportional to the needs of the investigation.Updating 210.28, which governs the procedures and limits associated with depositions. Proposed updates include adding language that clarifies that third-party depositions count toward a party group’s overall deposition limit, changing the number of depositions a complainant may take from five fact depositions per respondent to 20 total fact depositions, and limiting deposition time to one day of seven hours per witness (which may be altered upon agreement of the parties or order of the presiding administrative law judge).Adding a clarification to 210.30, which governs the production of documents, to conform with Fed. R. Civ. Pro. 34 by requiring that if a party is withholding documents based on an objection, it must affirmatively state that it is doing so.Codifying 210.32 to provide that the administrative law judge, in rare situations, may seek foreign judicial assistance on the Commission’s own authority rather than through a US district court when seeking to enforce a subpoena on a foreign entity.Interested parties may submit feedback regarding the proposed amendments at the Federal eRulemaking Portal or directly via the Commission’s website. Written comments must be received no later than 5:15 pm EDT on May 20, 2024.[View source.]
Still Using General Objections? See How One Party’s Use Led to Waiver
Association of Certified E-Discovery Specialists (ACEDS)Kelly TwiggerApril 17, 2024
comply can lead to the waiver of crucial objections. This case exemplifies the judiciary’s dwindling patience for non-specific objections and the severe implications for parties and counsel alike.Privilege Preservation Requires Diligence: While the court stopped short of declaring a waiver of privilege, the narrow escape experienced by the plaintiffs in Boco*ck v. Innovate Corp. should not be misconstrued as leniency. It’s a clear signal that maintaining privilege necessitates meticulous care in crafting objections and responses.Costs and Consequences: Beyond the immediate directive to comply with discovery requests, the ruling also highlights the financial ramifications of noncompliance. The plaintiffs were ordered to bear the motion costs, reinforcing the principle that unfounded or poorly justified discovery practices can have tangible financial consequences.Conclusion:The Boco*ck v. Innovate Corp. decision is yet another example of how parties need to be aware of the 2015 changes to Federal Rule of Civil Procedure 34 that require specific objections to a written discovery response. Failure to abide by the change may result in waiver of objections that may cripple a matter.[View source.]
Cloud Attachments: Versions andPurview
EDRM - Electronic Discovery Reference ModelApril 9, 2024
sed ESI Protocols and/or Requests for Production. I can’t make this point too strongly, because you’re not likely to discover that the other side didn’t collect and search cloud attachments until AFTER they make a production, putting you in the unenviable posture of asking for families produced without cloud attachments to be reproduced with cloud attachments.Craig Ball.If you’re smart, Dear Reader, you won’t fail to address cloud attachments explicitly in your proposed ESI Protocols and/or Requests for Production. I can’t make this point too strongly, because you’re not likely to discover that the other side didn’t collect and search cloud attachments until AFTER they make a production, putting you in the unenviable posture of asking for families produced without cloud attachments to be reproduced with cloud attachments. Anytime a Court hears that you are asking for something to be produced a second time in discovery, there’s a risk the Court may be misled by an objection grounded on Federal Rule of Civil Procedure Rule 34(b)(2)(E)(iii), which states that, [a] party need not produce the same electronically stored information in more than one form.” In my mind, “incomplete” and “complete” aren’t what the drafters of the Rule meant by “more than one form,” but be prepared to rebut the claim.At all events, a party who failed to collect cloud attachments will bewail the need to do it right and may cite as burdensome the challenge of distinguishing items reviewed without cloud transmittals from those requiring review when made whole by the inclusion of cloud attachments.Once a party collects cloud attachments and transmittals, there are various ways to distinguish between messages updated with cloud attachments and those previously reviewed without cloud attachments. Identifying families previously collected that have grown in size is one approach. Then, by applying a filter, only the attachments of these families would be subjected to supplementary keyword search and review. The emails with cloud attachments that are det
Sometimes Discovery Disputes Do Not Bring Out the Best in Us.
EDRM - Electronic Discovery Reference ModelMichael BermanApril 9, 2024
the court to sift through filings on its own. Courts do not act and should not be requested to act, in effect, as archaeologists and do the work counsel should have done.M1 Holdings, Inc. v. Members 1st Fed. Credit Union, 2024 WL 182220 (N.D. Ill. Jan. 17, 2024).Similarly, there was a failure to provide pinpoint, or “PIN,” cites. The court wrote: “Ideally, when asking for relief, a party should direct the court to docket entries and pages necessary to support its contentions, rather than leaving the court to sift through filings on its own. Courts do not act and should not be requested to act, in effect, as archaeologists and do the work counsel should have done.”One issue was that the rolling productions continued while the motion to compel was pending. This created what the court called “moving targets.” For example, the court wrote: “But, we are not given a date for completion except we are told it will be fairly soon. And that is manifestly insufficient by any fair measure.” Under Fed.R.Civ.P. 34(b)(2)(B): “The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.”Another problem was animosity. The court wrote: “M1st takes the opportunity to take a shot at M1, accusing them of being blasé about confidentiality…. It’s probably to be expected when the other side wants you to swear you’re not lying.”One last issue was likely important. The court found M1’s “oft-repeated” and “conclusory” assertions that the discovery at issue is “highly relevant” to be unhelpful. The court wrote that “not every piece of discovery is ‘highly relevant.’” Hyperbole seemed to characterize much of this dispute.My concern is with the requirement for a sworn statement. What are the mechanics of it?If the sworn statement is from the attorneys, I have two questions.First, what will a sworn statement add to the certification provision of Fed.R.Civ.P. 26(g)(1)(B)? Under Rule 26(g)(3): “If a certification violates this ru
Is Slack Content Discoverable? Yes, It (Definitely) Is
PagefreezerPeter CallaghanFebruary 8, 2024
At the time, many legal teams attempted to argue that emails were not discoverable because they weren’t, in fact, documents. This rule amendment stated that the wide variety of computer systems in use, as well as the speed of technological change, meant that the rule could not be limited to a precise definition of electronically stored information (ESI). Instead, the amendment addressed information “stored in any medium,” which not only included emails, but was flexible enough to encompass future technological changes and developments.FRCP Rule 34 and Team Collaboration PlatformsWith communication and collaboration platforms like Slack, Microsoft Teams, and Workplace by Meta first augmenting and now supplanting email usage, Rule 34’s amendment is once again having profound implications on eDiscovery. As with email two decades ago, legal teams are wrestling with the preservation and production requirements of ESI stored in these platforms.Some legal teams are once again attempting to say that these new forms of digital communication aren’t discoverable. Their arguments range from claims that Slack or Teams messages simply aren’t documents, to more practical complaints that the time and cost associated with extracting, processing, and ultimately reviewing thousands of messages is prohibitive.It’s not hard to see why some are pushing back on the basis of sheer data volumes—collaboration platforms can easily contain hundreds of thousands of messages spread across countless channels and direct conversations, making the ESI process c
Defendant Who Participated in Text Message Exchange Was Not Prejudiced by Disclosure on the Eve of Trial
EDRM - Electronic Discovery Reference ModelJanuary 18, 2024
ages violated the rules of discovery. And this turns in some measure on whether the source of the text messages, Ms. Forrest, falls within those rules.Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).Under Maryland Rule 4263(c)(2), in a criminal case:[t]he obligations of the State’s Attorney . . . extend to the material and information that must be disclosed under this Rule and that are in the possession or control of the attorney, members of the attorney’s staff, or any other person who either reports regularly to the attorney’s office or has reported to the attorney’s office in regard to the particular case. [emphasis in Court’s opinion]Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).This Rule is quite different from the “possession, custody, and control” aspect of civil discovery. The disclosure obligations under this Rule of criminal procedure are significantly narrower than the discovery obligations imposed on litigants in civil cases. Fed.R.Civ.P. 34(b)(1) permits a civil litigant to request documents “in the responding party’s possession, custody, or control….” The scope of Maryland Rule 2-422(a)(1) is the same.Under that narrower rule, the Pointer Court rejected both of Mr. Pointer’s challenges to the late disclosure of the texts.First, it rejected the argument that the victim’s multiple pre-trial meetings with the State equated to “reporting” under the Rule.This argument fails in several ways. For one, the prosecution gave Mr. Pointer the text messages as soon as it could. More importantly, Rule 4-263 didn’t even oblige the State to produce the text messages under these circ*mstances. Mandatory disclosure is required only in narrow circ*mstances.Pointer v. State, 2024 WL 70556(Apl. Ct. Md. Jan. 5, 2024)(unreported).In short, the victim meeting with the prosecution to prepare her testimony did not trigger the Rule. In a civil case, a jurisdiction following the “practical” control standard might have reached a different result. SeeThe
