Cases in which disputes are rooted in technology present challenges as courts apply traditional discovery rules to electronically stored information (ESI). For instance, in matters in which computers are allegedly used to commit a wrongful act, it may be appropriate to search devices, which raises concerns of “annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
In Satmodo v. Whenever Communications, the plaintiff alleged that the defendants conducted a click-fraud scheme. No. 3:17-cv-192-AJB-NLS, 2018 U.S. Dist. LEXIS 121873 (S.D. Cal. July 20, 2018). (Click-fraud refers to a person who or computer program that pretends to be a legitimate user interested in a particular advertisement without having a genuine interest in the advertised product. Because advertisers pay by clicks, artificial clicks from uninterested users increase the cost of advertising.) To determine whether the defendants engaged in fraud, the plaintiff moved to compel discovery. The defendants argued for a narrow scope of discovery and cited factors largely mirrored by the Federal Rules of Civil Procedure and outlined by Judge Anthony Battaglia of the Southern District of California. Judge Battaglia listed several factors: the needs of the case; the importance of the issues at stake in the litigation; the parties’ relative access to relevant information; the parties’ resources; the importance of the discovery to resolving the issues; and whether the burden or expense of the proposed discovery outweighs the likely benefit. Although the court compelled discovery, it used these factors to limit discovery where it found the plaintiff’s requests to be intrusive.
To the extent that the court granted the plaintiff’s motion, it generally did so because the particular discovery request was important to the resolution of the case and the burden on the defendants was minimal. For example, the plaintiff sought to inspect devices to determine whether the defendants used the devices fraudulently. The court found that the demand for inspection was proportionate to the needs of the case because the burden would primarily be borne by the plaintiff and it could lead to the resolution of the case. However, given the amount of data accessible from the defendants’ devices, the court created an inspection protocol to limit discovery to relevant information and protect the privacy and business interests of the defendants and their employees.
The court’s ruling on the plaintiff’s motion to compel production of documents is particularly notable because the court did not require the plaintiff to draft a more specific request. The defendants argued that the plaintiff did not provide guidance on the type of documents that may have been responsive to the request. Instead of requiring the plaintiff to be more specific or provide examples, the court identified the defendant’s browser history as an example of a non-traditional “document” responsive to the plaintiff’s request. The court ordered the defendants to conduct a search for other “documents” in locations such as the browser history and produce redacted documents to remove irrelevant information. The decision subtly acknowledged the increasing variety in location and form of ESI, yet preserved the defendants’ responsibility to search for such information without placing any additional obligation on the plaintiff. (It is debatable whether the defendants could have avoided this particular dispute if they produced some responsive documents rather than arguing that the plaintiff did not provide guidance and producing none at all.)
The takeaway for this case is that the concepts of relevancy and proportionality embodied in traditional rules of discovery will continue to be applied to ESI. Murphy serves as a reminder that the needs of the case drive discovery, and courts will evaluate the scope of discovery using the factors outlined by FRCP 26 and expanded upon by Judge Battaglia. As the forms and location of ESI continue to develop with technology, it will be interesting to observe how courts simultaneously allow the discovery of relevant information while protecting parties from an unnecessarily broad scope.
Dorian Simmons is an associate with Weil, Gotshal & Manges LLP in New York, New York.