Fake News, eDiscovery and Sanctions, Oh My

Author: Jeff Dreiling

Since this blog will focus on some recent eDiscovery case law involving BuzzFeed, we figured it deserved a “clickbait” headline. Recently, a case in the U.S. District Court for the Southern District of New York provided some insight into the application of FRCP 37(e).

Leidig v. Buzzfeed and FRCP 37(e)

In the case, Leidig v. Buzzfeed, the plaintiff sued the news organization seeking $11 million in damages for defamation in response to an article that the news site wrote about Michael Leidig. Leidig is the founder of Central European News (CEN). The article in question asserts that Leidig and his organization fabricate and sell “fake news” stories. The suit, filed over 2 years ago, is now in the headlines for issues relating to how the eDiscovery was handled (or in this case mishandled).

As Mike Hamilton points out in a recent article from Legaltech News, the endless nightmare of conferences, motions and lack of progress on the eDiscovery front points to either gamesmanship or incompetence or possibly both. Sound familiar?

eDiscovery issues: Metadata matters

After initial productions in this matter, the defendant, noted “deficiencies in the plaintiff’s response to their document production request. Buzzfeed claimed that CEN produced documents bearing no metadata, including [but not limited to] manually manipulated PDFs, and summaries of underlying documents not produced.” The defendants asked the court to mediate the dispute and the court obliged, ordering CEN to produce an original version of documents along with corresponding metadata.

Again, after a subsequent production, Buzzfeed claimed that CEN did not comply with the court’s instructions. After another conference with the court, there was an order for CEN to produce a witness for a 30(b)(6) deposition. The purpose of these types of depositions is to allow opposing counsel to learn about the steps taken to collect documents that are potentially responsive to a legal matter. IT veterans are likely more familiar with this type of deposition than they would like to be as this is when they have to explain everything from document retention policies to enterprise search solutions to audiences that often have little background on the subject matter. Specifically in this case, the court ordered that CEN produce a witness that could answer questions about the “efforts to collect documents and metadata”.

30(b)(6) depositions and a “surprise” corporate rep

Surprisingly to some, CEN produced none other than the plaintiff and founder of their organization for this deposition. If you have been involved in litigation that has included eDiscovery disputes, you probably aren’t all that surprised. We have been party to numerous 30(b)(6) depositions in which a “surprise” corporate rep has been produced. In this case, Leidig was unable to answer numerous questions pertaining to the efforts made to preserve and collect potentially relevant ESI in this matter.

The attorneys representing Buzzfeed were able to get some useful information out of this deposition however; most notably:

  • No special effort (read: legal hold) was made to preserve documents concerning the Buzzfeed piece.
  • CEN was only instructed to preserve evidence after the suit was filed
  • The plaintiff himself attempted to manually move files to a production repository, thereby modifying potentially crucial metadata

After hearing the named plaintiff admit to spoliation of metadata and after having the majority of their eDiscovery related questions go unanswered in a deposition that was court ordered to get just those questions answered, the defendants filed a motion for spoliation and sanctions with the court.

The court responds to discovery disputes

The court, maybe surprisingly to some, ruled against the motions filed by the defendants. The court found that although the deposition witness was “lacking in desired specificity in discrete areas” it wasn’t egregious enough to warrant sanctions and that the witness had “substantial information” in areas of key topics. The court also allowed Buzzfeed to require a different witness to adequately answer the questions Leidig didn’t.

As for the ruling on sanctions for spoliation, the court also ruled in favor of the plaintiff. Acknowledging that the defense was denied access to metadata that they had sought, the court noted that while “certainly negligent” it could not establish intent to deprive. Buzzfeed will however be allowed “to present evidence that CEN failed to preserve relevant data and CEN would be precluded from using the date in any document to prove the date in which the document was created due to the metadata modifications.”

At the end of the day, these types of discovery disputes serve to help nobody in the legal process. Often times, the only outcome of these disputes are to:

  • Delay the application of justice
  • Drive costs of litigation up for both parties
  • Frustrate and waste the time of Judges
  • Delay the inevitable outcome

What do you think about this interpretation of FRCP 37(e)?

We’re interested to hear what you think about this interpretation of FRCP 37(e). Is allowing the defendant to use the “potentially intentional” spoliation of metadata, the lack of a correct and timely litigation hold process, and the permanent loss of potentially crucial metadata between key custodians a fair application of the rule? Head over to my LinkedIn page to join in on the conversation.

Jeff Dreiling EDiscovery Trial Consultant, Kansas City
2018-03-19T13:11:10+00:00 Discovery|