Plaintiffs have filed a complex class action case against a global multimedia conglomerate, alleging widespread employment discrimination that resulted in suppressed wages. Discovery has just begun, and plaintiffs have asked for all of the defendant's pay and human resources data that reside on defendant's proprietary voluminous multi-terabyte databases. One of the databases has limited export functionality, so that information cannot be easily extracted. In addition, plaintiffs seek information residing in employees' social media accounts. In preparing a response to plaintiffs' requests and negotiating the scope of discovery, defendant wants to leverage the upcoming changes to the Federal Rules of Civil Procedure ("Federal Rules") as much as possible to reduce costs.
Discovery Challenges Associated With Big Data and Social Media
"Big data" is popular shorthand for the enormous volume of information being generated by both individuals and companies over the last several years. For corporations, sources of big data typically include structured databases housing information relating to various business operations, such as sales or customer information. The volume, complexity and dynamic nature of big data presents a number of challenges to parties involved in litigation. First, because databases tend to be updated on a routine basis and may not be designed to preserve information that's been updated, preserving potentially relevant data can be complicated. Second, databases may contain a huge number of data categories that are not relevant to the litigation. It is important to be able to determine what information is contained in each database and how to extract only relevant data. Third, it is unlikely that an opposing party will be able to access structured data in the same format in which is it maintained by the corporation. Data will often need to be translated into in a generic format to meet the "reasonably accessible" standard of the Federal Rules.
Social media, such as posts on Facebook or LinkedIn and micro-blogging sites such as Twitter, are a particularly problematic subset of big data. While most social media accounts belong to individual users, many companies have created corporate accounts on numerous social media sites. Like the information contained in structured databases, the less-structured data created by social media users may be discoverable. Social media poses its own set of unique challenges to the discovery process. Social media postings may contain personal information that triggers state or federal privacy laws. Further, the data associated with the account is controlled by at least two parties—the account holder and the social media company. This dual access presents interesting questions concerning which party is responsible for preserving and producing the data. Finally, similar to structured data, producing content from social media sites in a reasonably accessible format can be challenging.
Proposed Amendments to the FRCP
The proposed amendments to the Federal Rules, which are scheduled to take effect on December 1, 2015, include changes to the discovery rules that emphasize the importance of cooperation and proportionality in discovery, especially e-discovery. Some important amendments related to discovery include:
- Proposed Rule 26(b)(1) now limits discovery to information that is relevant to any party's claim or defense and "proportional to the needs of the case." As the Advisory Committee explained, the adjustment to Rule 26(b)(1) is intended to "prompt a dialogue among the parties and, if necessary, the court, concerning the amount of discovery reasonably needed to resolve the case."
- Proposed Ruled 26(b)(1) also deletes the phrase that discovery may include information that is "reasonably calculated to lead to the discovery of admissible evidence," which had the potential to broaden discovery beyond its proper scope. The change reinforces that parties may only seek evidence that is relevant to the claims and defenses (as well as proportional).
- A proposed amendment to Rule 26(d)(2) permits the parties to serve document requests under Rule 34 before the Rule 26(f) conference related to discovery planning. This allows parties to address issues presented by the document requests at this conference.
The notes to the proposed Federal Rules also acknowledge the explosion of information and ESI, as well as advancements in technologies that are occurring. For instance, the notes to amended Rule 26(b)(1) state that "[c]omputer based methods of searching such information continue to develop, particularly for cases involving large volumes of electronically stored information," and "[c]ourts and parties should be willing to consider the opportunities for reducing the burden or expense of discovery as reliable means of searching ESI become available."
It is important to note that the rules do not altogether eliminate the reality of asymmetric discovery. The notes acknowledge that one party may have more information than another and will therefore often bear a heavier burden in responding to discovery. Nevertheless, the amendment's focus on cooperation and proportionality in e-discovery provides a springboard by which to engage with the other side early on in discovery. It also encourages active judicial management of discovery to resolve disputes.
Tips for Managing Risk
There are a number of issues associated with the discovery of big data and social media, including differentiating between relevant and irrelevant data, minimizing the disruption to business operations, complying with applicable privacy laws, preserving potentially relevant data and producing relevant information in an appropriate format. The proposed amendments to the Federal Rules, with their focus on cooperation and proportionality, will allow counsel the opportunity to address these issues early in the discovery process and more strongly negotiate against demands that are too broad or too costly. The proposed amendments provide language to push for proportionality and efficiency.
When preparing to negotiate the scope of big data and/or social media discovery, consider the following:
- Obtain the opposing party's Rule 34 document requests prior to the Rule 26(f) conference and determine whether they contain requests for big data or social media posts.
- For requests seeking structured data, work with counsel and information technology professionals to determine the most cost-effective strategy for preserving the data.
- Become familiar with the databases and determine what kind of data is stored within each database and how, if at all, that data can be extracted for potential production. For databases that are difficult to access, explore whether the same information could be retrieved from other sources.
- During the Rule 26(f) conference, avoid preservation protocols that are impractical for dynamic, structured databases.
- For requests seeking social media content of individual employees, consider the merits of such requests on relevance and proportionality grounds, as well as privacy grounds, in order to avoid fruitless and costly requests for irrelevant data.
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