United States: Ediscovery For Defendants In Practice

Last Updated: July 10 2019
Article by James Beck

We've repeatedly advocated that defendants try turn the e-discovery tables on plaintiffs whenever possible – particularly in MDLs where discovery is flagrantly one-sided – by going after plaintiffs' social media information. In just about every case involving allegations of personal injuries, social media will have admissions by plaintiffs concerning their conditions and activities that concern and often contradict their claims. Heck, we even have a cheat sheet with over 100 favorable cases requiring personal injury plaintiffs to produce material posted on Facebook, MySpace (that used to be a thing), Twitter, Snapchat, and even fitness watch data.

We got our hands on a recent public filing in the Taxotere MDL that details how such a strategy can force MDL plaintiffs to be on the receiving end of, if not a fair share, then at least a decent share of ediscovery. Taxotere has always struck us as a good candidate for a plaintiff-focused ediscovery strategy because the drug is used in chemotherapy cancer treatments and – as if this wasn't a notorious side effect – causes hair loss. E.g., In re Taxotere (Docetaxel) Products Liability Litigation, 220 F. Supp.3d 1360, 1361 (J.P.M.L. 2016). Since Taxotere focuses on appearance, and so does much of social media, ediscovery against plaintiffs' electronically stored information ("ESI") would be both highly relevant, and extremely proportionate.

Plaintiffs dish out ediscovery in every MDL. Can they take it?

Apparently not – at least not very well.

According to the defendant's filing, spoliation (either by failing to preserve or actively deleting) relevant social media ESI approached the scale of a plaintiff-side modus operandi in Taxotere. From the beginning of the Taxotere MDL, defendants sought discovery of plaintiff-side ESI. These efforts started with an early case management order (PTO 49) approving plaintiff fact sheets that also specifically incorporated production of such ESI. PTO 49 was accompanied by a 20-page " ESI Protocol," applicable to all parties in all cases. Critically, nothing in either PTO 49 or the accompanying protocol was limited to the defense ESI production (although, realistically, some provisions were highly unlikely to apply to individuals).

That's the first step defendants must take. From the beginning, discovery must be a two-way street, and the plaintiffs' MDL discovery obligations must explicitly include ESI. Plaintiffs, as well as defendants, should have to comply with ESI-related litigation holds. In Taxotere, that order went into effect in July, 2017.

By the way, if you want to follow along with the Taxotere saga at home, the Taxotere MDL may be found here on PACER.

Most Taxotere plaintiffs did what MDL plaintiffs normally do, which is nothing, or as close to nothing as they can get away with. In so doing, however, they violated the in-place court order, usually by filing fact sheets that did not even purport to include ESI. According to defendants, by October, "[o]f the 1,179 Plaintiffs who had submitted a PFS . . ., only 21 had produced ESI."

Taxotere defendants did not allow this plaintiff-side passive-aggressive approach to MDL discovery to continue any longer. Motion practice produced another case management order (Pre-Trial Order ("PTO") 71A), in January, 2018, specifically addressing the MDL plaintiffs' ESI discovery failings:

Concerned that certain Plaintiffs in this MDL do not appear to have adequately and timely produced responsive electronically stored information ("ESI") as required by the Plaintiff Fact Sheet ("PFS"), the Court enters this Order governing Plaintiffs' identification, preservation, collection, and production of ESI. The Court also orders all Plaintiffs and their counsel to review and familiarize themselves with the revised "Guidance Regarding Potential Sources of Electronically Stored Information," attached here as Exhibit A.

Id. at p.1 (emphasis added). We're also attaching the ESI "guidance" that was an exhibit to PTO 71A. There's no reason to reinvent the wheel in each MDL.

Taxotere PTO 71A put plaintiffs squarely behind the 8-ball on ESI discovery. It applied to "all plaintiffs" and "all document requests." Id. ¶ 1. It covered "any" social media from "five (5) years prior to [a plaintiff's] docetaxel treatment" onwards. It provides a good definition of plaintiff-side social media that must be produced:

(i) any email accounts used by plaintiff; (ii) any electronic devices used by plaintiff (e.g., desktop or laptop computers, tablets, mobile phones, digital cameras); (iii) any other hardware storage devices used by plaintiff (e.g., external hard drives, memory cards, USB or thumb drives, CDs/DVDs); (iv) any social media used by plaintiff (e.g., Facebook, Instagram, LinkedIn, Twitter, MySpace, YouTube, Pinterest, or other online collaboration tools such as Google+ or Yahoo! groups); (v) any website where a plaintiff made online postings (e.g., on a blog, message board, etc.); (vi) any cloud storage used by plaintiff (e.g., DropBox, Microsoft Office365 Account, Google Drive, iCloud, Amazon Drive, etc.).

Id. ¶2. Again, don't reinvent the wheel – but social media is constantly evolving, so do keep up to date on new forms of social media that might need to be added. The order even defined what a "reasonably diligent" ESI search entailed, so plaintiffs couldn't continue avoiding discovery by playing dumb:

Reasonably diligent searches may require running search terms; reviewing files, communications, videos, and photographs; or otherwise conducting an actual, physical search of the sources. Plaintiff's counsel shall take an active role in identifying, preserving, collecting, reviewing, and producing all responsive ESI.

Id. ¶3.

PTO 71A included 15 specific search terms that plaintiffs had to use. Id. ¶4. Plaintiffs were required to "produce all responsive ESI in a manner that preserves any metadata." Id. ¶5. In addition to producing the ESI itself, the court required a "written statement" signed by both plaintiff and counsel and subject to Fed. R. Civ. P. 26(g)(3) (concerning discovery sanctions), providing:

a. A description of any employer-owned email accounts, other individuals or other locations, and resources where responsive ESI may exist; and

b. A description of unique, non-duplicative ESI within the scope of discovery that was lost or destroyed and whether plaintiff used any consumer backup tools (e.g., Carbonite, Backblaze, Crashplan, etc.).

Id. ¶6.

The " guidance" accompanying the Taxotere PTO 71A included a series of instructions to plaintiffs' counsel on how to obtain their clients' compliance with ESI discovery. It discussed:

  • That "reasonable inquiry" is required to avoid sanctions.
  • Where to look and what to look for – especially photographs, emails, text messages, and social media posts.
  • Providing clients with a source of technical expertise (a "tech nerd") to facilitate the inquiry.
  • Overcoming "pushback" from recalcitrant clients.
  • What clients did when they replaced or upgraded their hardware, and what they will do in the future.
  • That clients must search old hardware and abandoned social media accounts.
  • Preservation of metadata.
  • Time limits and relevancy limits to searches.

In short, ediscovery against plaintiffs in Taxotere was no joke. Plaintiffs – and their counsel − were actually expected to do work in responding to discovery.

Still the Taxotere plaintiffs resisted, disobeyed, and withheld information. Their failure to comply with discovery was particularly blatant concerning an on-line support group ("Taxotears") that many of them belonged to. Such product-specific online groups are common, and thus relevant in many MDLs. Plaintiffs refused even to identify the members of this group. The defendants didn't give up, and their pursuit of plaintiffs' discovery evasions led to entry of another discovery order in May, 2018.

The PSC will identify every Plaintiff in this Multidistrict Litigation who was or is a member of the Taxotears group. That information will be provided to [defendant] no later than [a date certain]. . . . [T]he names of non-Plaintiff members on that list may be redacted by the PSC.

Counsel for each Plaintiff who is identified as a current or past member of the group is to be notified by the PSC of the fact that their client's name is on that list and the PSC is to provide counsel with a copy of this Discovery Order.

May, 2018 Order at 1. Then counsel were required to to back and check those names against plaintiff fact sheets "to identify Plaintiffs whose Plaintiff Fact Sheets may be deficient with respect to information regarding their membership in the Taxotears group." Id. at p.2. The court also entered a "preservation order" against plaintiffs:

All Plaintiffs are hereby specifically ordered by the Court to retain and preserve any and all materials to which they have access through the [support] group and to refrain from any efforts to dispose of or delete any emails, posts or other electronic information sent or received by them or accessible to them by virtue of their membership in that group.

Furthermore, any Plaintiff who is a current member of the [support] group is hereby prohibited from ending her membership in that group until further order of the Court. This order is intended solely to preserve the status quo and the ability of every Plaintiff member and/or her counsel to continue to have access, to whatever extent access is possible, to information available to members of the [support] group.

Id. pp.2-3. Defendants also were granted the right to take depositions to understand how the support group operated and what discoverable material it had. Id. at p.3. Not a single one of those plaintiffs thereby identified had produced the required ESI in her original fact sheet.

Defendants kept pushing their right to take ediscovery, and plaintiffs kept resisting. According to defendants, they made blatantly incomplete disclosures and deliberately deleted metadata, in direct defiance of the court's instructions. Evidence that counsel may have advised plaintiffs – or that plaintiffs may have so understood such advice – to delete or hide ESI led to an in camera review order on August, 2018. One of the founders of the support group left the country and thereafter tried to avoid responding to ESI and other discovery. In October, 2019, the court ordered her deposition and production of ESI.

Actual sanctions started being imposed. See In re Taxotere (Docetaxel) Products Liability Litigation, 2018 WL 4002624 (E.D. La. Aug. 22, 2018) (sanctioning plaintiff that had instructed third-party health care providers to ignore and disobey discovery; evidence of these transgressions being first discovered in that plaintiff's social media).

She is a sophisticated plaintiff, and she is a representative plaintiff in this litigation. . . . [Plaintiff] knew or should have known that the [fact sheet] required her to disclose [a treater] and the treatment he provided to her. . . . [Plaintiff] has provided no explanation for why she instructed the [hospital] not to release her records. Further, her correspondence with [the treater] about [defendant's] request for his records demonstrates that she has encouraged at least one other potential witness to be less than forthcoming in this litigation.

Id. at *4. That plaintiff had to pay the defendant's fees and costs "incurred" due to her discovery breaches, produce "any relevant information" she was still concealing – specifically including all records from the treater in question – and be redeposed "on the evidence she withheld." Id.

The Court will allow this sanction to serve as a warning . . . to any other plaintiff who might be considering adopting evasive tactics like those discussed in this opinion. If the Court learns that any other plaintiff has intentionally withheld relevant information that should have been produced in a PFS or in response to a request by Defendants, the Court will impose severe sanctions, which may include dismissal with prejudice.

Id. See also In re Taxotere (Docetaxel) Products Liability Litigation, 2018 WL 6697113, at *2 (Mag. E.D. La. Dec. 20, 2018) (denying reconsideration of sanctions against plaintiff who admitted "that her production [of ESI photographs] was less than complete").

In November, 2018, a new, streamlined protocol to dealing with the many Taxotere plaintiffs who continued to violate PTO 71A was put in place, denominated PTO 85. That order "only applie[d] to PTO 71A and privilege log deficiencies alleged by the Defendants." Defendants could file deficiency notices within 30 days of the PTO 71A compliance deadline, and plaintiffs had 30 either to "cure the deficiency," dispute the deficiency, or dismiss their cases. Taxotere PTO 85 ¶3. Telephonic hearings with a magistrate judge are scheduled every 60 days, with sanctions following failure to comply with orders. Id. ¶¶4-1.

The other notable thing that we noticed going through the Taxotere MDL docket was the large numbers of orders dismissing plaintiffs' cases. There are hundreds, maybe thousands, of them on the docket. This constant flow of dismissals is a strong indication that the defense strategy of making all MDL plaintiffs comply with real discovery requirements is having the desired effect. We know from bitter experience that most MDL cases are garbage, and if those plaintiffs are flushed out and forced to justify their lawsuits, they won't bother. So, make them work, the earlier the better. Indeed, there have been so many Taxotere dismissals that the court even had to enter a pre-trial order ( PTO 87) just to standardize the procedure for plaintiffs filing voluntary dismissals. Ediscovery for defendants in Taxotere thus appears to be playing a significant role in getting meritless cases off of the docket – which is the number one priority of defendants in most mass tort MDLs.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions