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.

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