Cowboys & Lawyers: Spaghetti Western eDiscovery

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An article by Joshua Gilliland, Esq. posted on the Bow Tie Law Blog.

This article looks at the case of Tadayon v. Greyhound Lines, Inc., and discusses the recent opinion of U.S. Magistrate Judge Facciola.

The article quotes part of Judge Facciola's opinion, as follows "

As explained at the discovery status hearing held on April 30, 2012, there is a new sheriff in town—not Gary Cooper, but me. The filing of forty-page discovery motions accompanied by thousands of pages of exhibits will cease and will now be replaced by a new regimen in which the parties, without surrendering any of their rights, must make genuine efforts to engage in the cooperative discovery regimen contemplated by the Sedona Conference Cooperation Proclamation. First, the parties will meet and confer in person in a genuine, good faith effort to plan the rest of discovery. They shall discuss and agree, if they can, on issues such as the format of any additional productions, the timing and staging of all depositions, the submission to each other of discovery reports, and the scope and timing of any Federal Rule of Civil Procedure 30(b)(6) depositions. The parties will then jointly submit their discovery plan for my approval. I commit myself to work with them in resolving any disagreements, whether they arise initially or during discovery. To that end, I will schedule a telephonic status conference every two weeks in which I will ask the parties about their progress (or lack thereof) and try to resolve any disagreements they have.

Tadayon v. Greyhound Lines, Inc., 2012 U.S. Dist. LEXIS 78288, 15-17 (D.D.C. June 6, 2012)."

The article further examines some of the reasons that the plaintiff's sanctions request were denied.  Some of the reasons cited were as follows:  The clawback agreement was not limited; the plaintiff was pro-se hence no attorney expenses were permissible; and the defendant's alleged violations attached to Rule 26 obligations, not a violation of a prior court order.

The article further states, "eDiscovery should not be the gunfight at the O.K. Corral. Parties can reduce motion practice and move their cases forward by cooperating effectively during their Rule 26(f) meetings. I stress multiple meetings, because it is unlikely one conference will settle issues such as collection, search terms and production dates.

Cooperating at a meet and confer does not mean surrender. There are technical issues that must be addressed when discussing electronically stored information. According to Michael Arkfeld, some of these issues include:

• Understanding Each Party’s IT System
• Preservation of ESI
• Agreed upon Computer Terminology (how do you define metadata, forms of production, etc)
• ESI Types and Storage Media, Devices & Locations
• Production Protocols 
• Protecting Privileged ESI."