ACEDS #CaseoftheWeek featuring Kelly Twigger

 

Episode 19 of #CaseoftheWeek analyzes the decision in Vera Bradley v. Aixin Li, 2021 WL 1088323 (N.D. Ill. 2021) and the importance of detailing a motion to compel, when unsubstantiated proportionality objections become boilerplate, and how courts are treating ineffective privilege logs.

ACEDS #CaseoftheWeek featuring Kelly Twigger

Good morning and welcome to our case of the week for April 6, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal of ESI Attorneys.

As you know, from watching us each week, this is through our partnership with ACEDS, the Association for Certified E-Discovery Specialists. And each week we pick out an ediscovery decision from eDiscovery Assistant to talk about the practical implications of what it means for you and your clients and your practice specifically as it pertains to electronic discovery.

But as we know, all discovery is electronic discovery. Our decision this week is in the case of Vera Bradley v. Aixin Li. Our decision comes from the magistrate judge to whom discovery was assigned from March 22, 2021. This is a decision on a motion to compel. Within eDiscovery Assistant, as you know, we tag all of our decisions by issues. The issues covered in this case include attorney client privilege, attorney work product, cooperation of counsel, privilege log, proportionality and failure to produce. Those are the issues that are covered.

We’re going to do things a little bit differently this week. We’re seeing a lot of decisions where the parties still aren’t starting early enough in discovery. They’re essentially prejudicing their clients by waiting until the end of discovery to move to compel and try and get information, which means that they don’t have sufficient time to be able to look at the electronic information, understand the relationships and what additional information might be needed. We’re going to talk about some of the ways in which the court addresses that on this motion to compel and what that means from a practical perspective for you.

Oftentimes on our case of the week, I try to separate the facts and the court’s analysis. Here, they’re really intertwined. We’re going to kind of just go through the whole decision as part and parcel and then we’ll do our takeaways at the end. This motion to compel is the court really starts out by talking about this case as another in the long line of garden variety trademark infringement over the Internet cases. Essentially what we have here is Vera Bradley, which, if you’re not familiar with the Vera Bradley brand, has a very distinct set of patterns. Mostly floral, but paisley and other are very colorful patterns, soft fabrics for which they use to manufacture different kinds of cases. They can be luggage, backpacks, purses, cosmetic cases; all kinds of different sort of container type things. It’s the patterns and the fabric and the the texture, the softness of the fabric that really sets the Vera Bradley brand apart. This is a situation where Vera Bradley has brought an infringement claim against another manufacturer, claiming that they’re infringing upon their designs. Those fabrics are filed with the appropriate authorities so that they are trademarked.

In this particular case, which was filed in April of 2020, we are looking at a motion to compel that was filed four days before the close of discovery in February of 2021. Based on the timing, the court essentially says, “look, we could have dismissed this. It is untimely, and it cites a whole host of cases in which motion to compel are filed after the close of discovery. We’re not quite after the close of discovery, but we are four days before the close of discovery.” In effect, whatever the court orders is going to have to be completed after the close of discovery.

In this motion to compel, the plaintiff’s raise more than 50 alleged discovery deficiencies in both plaintiff’s answers to the interrogatories  — I’m sorry it wasn’t the plaintiffs raising it is the defendant’s motion to compel. The defendants raise more than 50 alleged discovery deficiencies in the plaintiff’s answers to the interrogatories and in their document production.

This decision is a follow up to a previous decision on the motion to compel that the court ruled on March 1st of 2021. That decision is also included in the eDiscovery Assistant. If you’re a user, you can look on the left hand side when you follow the link to this case (the public link of which is posted on the events page). When you follow that public link, you’ll see the additional decisions in the case on the left hand side.

In its motion to compel here, the defendant’s quote, “that this motion should not be necessary, however Vera Bradley is not cooperating in discovery. It is refusing to provide the most basic information about its claims, such as what it is that makes the accused product counterfeit or what damages it claims. To obstruct discovery, it has continuously made the same egregiously improper boilerplate and ill founded objections. Defendants bring this motion reluctantly, but they have no choice as they must defend themselves.”

I think the reason I wanted to share that quote with you is that it’s important when you’re putting a motion to compel before the court to be able to state exactly what the tenor of your position is. A lot of times we see motions briefs that are drafted that we work with clients on where that kind of position is not stated up front. That’s a really important way to set the tenor of the motion for the court so that they can evaluate it within that construct.

There are really two main issues in this. The three main issues, two that pertain to the discovery requests and one that pertains to the privilege log. On the two issues that pertain to the discovery requests, we are really talking about the use of boilerplate objections by the plaintiffs and defendants potentially exceeding the number of interrogatories and plaintiffs refusing to respond to them. The court looks at the filing by the defendants, and this is an important practical consideration — it looks at the brief filed by the plaintiffs and they say this is a 15-page brief in which you’ve raised 50 plus issues on discovery, but you’ve only cited two cases.

The court really found that the dearth of case law that was presented by the plaintiffs, because they cited no additional information on their reply brief at all, really meant that they hadn’t presented cases that could be considered by the court. Many of them, they deemed were waived because they were not supported by case law. Your practical consideration there is that you need to know and understand the case law on these various objections, and you have to provide authority for why there’s a violation, why something is not proportional, or why something is proportional, or why something is not an undue burden in a trademark infringement case.

There are hundreds of decisions out there that deal with those issues and you have to cite that authority on your motion to compel looking at the timing related here and the number of times that the parties had met and conferred, the court notes that the parties met and conferred four times before these motions were brought. It feels like that perhaps  the defendants looked at the calendar and said, “there’s only four days left in the close of discovery. We have to bring this motion to compel before discovery closes.” They brought the motion, perhaps without enough time, to be able to provide all of the support that was necessary. The court slammed them for that.

You’ve really got to plan, plan, plan. That’s our overriding theme today, is that.

This case filed back in April of 2020. Looking at the docket, there’s not a lot of activity on discovery until several months after the complaint was filed. I think that’s where we start to get into trouble—both from a perspective of getting what you need prior to the discovery deadline, but also actively using the data that you have. I want to talk about that a little bit more, but let’s stay with the the boilerplate objections.

We talked about the fact that the court was very disappointed in the lack of case law that was provided by the defendants. There’s an important quote here in that the court says that “perfunctory and undeveloped arguments and arguments that are unsupported by authority are waived under 7th Circuit case law.” AI think that that case law is consistent across the country. It’s not as well developed as it is in the 7th Circuit, except perhaps in the 2nd Circuit.

Looking at the boilerplate objections, what is the court talking about here? The court looks at a long list of cases stating that boilerplate objections are ineffective and essentially constitute waiver. They state specifically that it is insufficient to state first that just a request is over-broad or unduly burdensome without saying why. A good quote from the court here is “all discovery is burdensome and very little of it turns out to be of any significance if and when the parties finally make their way to the issues of the case. But just because boilerplate objections have a long history does not mean that the continued warnings and holdings of the courts should be ignored.”

That’s a really important point here. That’s one of the big takeaways from this case, is if you’re going to use objections in your responses, they have to be substantiated. They have to be based on facts that are crucial to that specific objection and how it interplays with your client and the ability to provide information. That’s a practical consideration. That means that you’ve got to take up the process of understanding what discovery your client has and any potential burdensome issues, proportionality considerations, timing issues. You need to understand those before you are responding to the request for production. Typically, we all do this. Everybody looks at and tries to get responses to the request of production done before the 30 days, but oftentimes does not understand what data or information the client actually has to be produced prior to serving those responses. That is a mistake and it is a further mistake to file responses, one without proper objections to using boilerplate objections. You’ve got to have a substantial basis for providing objections to individual requests for production to interrogatories.

Getting back to what we’re talking about in this particular case, one example that the court cites and again, there were 50 some things that the court didn’t didn’t address each one in the decision, but simply pulled out some examples of each. In particular, the first interrogatory that was addressed to the plaintiffs, asked for “each person or entity that has knowledge of any facts upon which you rely on asserting your claims, identify the person and state such facts.”

That’s a standard interrogatory. I mean, we all see that over and over and over again. Typically, though, in federal courts, that interrogatory is responded to by initial disclosures. Rule 26(a)(1) requires us to provide each individual person that has a basis for these facts. Now, keep in mind that this interrogatory is directed to the plaintiff, Vera Bradley, who brought this claim for trademark infringement against the defendant. The defendant has now served them an interrogatory, asking for the people who have information about the infringement and Vera Bradley’s response says with no response that “Vera Bradley specifically objects to this request is over-broad and unduly burdensome because it requires them to identify each and every fact that supports, undermines and or relates to each allegation in the complaint. It’s not proportional to the needs of the case, and it is premature and compound because a discovery is ongoing and because the request contains multiple subparts, which should be counted as separate interrogatories. They further object to the extent it seeks production of information under the attorney client privilege or attorney work product.”

Essentially, we throw in every objection into the mix for this particular interrogatory, which really just asks for the people in the facts that underlie the basis of the complaint, which was brought by Vera Bradley.

The court breaks down each objection to that interrogatory and really takes them in broader brush. As a look at all of Vera Bradley’s responses that the defendants are objecting to, but specifically in context of this particular one. They refer to this response as a very typical discovery response that all lawyers engage in and that lawyers and courts have become numb to.

I think that’s a really accurate reading of exactly what we all do. I know that a lot of times when I’m reading through discovery responses, I get pages and pages of boilerplate objections and simply go to exactly what the specific objections say because we’re numb to it. It’s what what we’re used to seeing.

What the court does, though, is question how burdensome it really is for Vera Bradley to have identified those who have knowledge about facts for the complaint for which the plaintiff filed. And it acknowledges that the refusal of Bradley to do that is a violation of 26(a)(1), because those are required on initial disclosures. In fact that the overly burdensome objection completely thrown out.

The court then looks at whether or not the objection about the request being premature because discovery is ongoing is valid. In this particular instance (I’d like to address it on a broader scale) but in this particular instance, the court says this objection was made three days before the close of discovery. I believe that this was a supplemental filing to the to the motion to compel because the motion to compel, the court says, was made four days before the close of discovery. This response was filed three days before the close of discovery. So ostensibly after Vera Bradley would have received the motion to compel from the defendants.

The court says, how how much more discovery is going to be ongoing, given that you have three days left, how is this a valid objection? So it throws that one out. I think that on a larger scale, this discovery is ongoing objection is problematic because, of course, discovery is ongoing. But I think the proper way to deal with that is from a meet and confer perspective to state that the parties are still examining and evaluating, identifying and reviewing documents, and that as further documents are identified, those will be produced in the course of discovery. There are ways to address that without providing a blanket objection that doesn’t really have any valid basis. So I understand the premise, but the way in which the parties deal with it with this blanket objection is not going to be suitable to the court. You’re not going to win on a motion to compel with a blanket objection. That discovery is premature.

The next objection the court deals with is proportionality. In this particular instance, Vera Bradley throws out proportionality, but gives absolutely no basis as to why the interrogatory, which is asking for the people who have facts about the case, why it’s disproportional to the needs of the case. The court says, and this is an important quote, “Proportionality is not a self defining or self authenticating objection. Proportionality, standing alone, is itself a kind of boilerplate objection. If you want to use proportionality as a valid objection, you have to state a basis for why the information being asked for is not proportional to the needs of the case or why its unduly burdensome to your client.”

Remember that Rule 26 has six factors for what constitutes proportionality, and utilizing those factors as a basis for a specific objection under proportionality is what you’ll need to do to be successful, to object to something on the basis of proportionality, whether on a motion to compel or otherwise.

Those are the specific objections that the court looks at with regard to the discovery responses. Again, keep in mind that we’re really talking about the close of discovery. Now the defendants move to compel four days before the close of discovery. A week later, according to the court’s decision, the plaintiffs then asked for an extension of discovery for 60 days, which the court granted. And that, of course, gives you a little bit extra time. Maybe the plaintiffs looked at the motion to compel realized they were going to have some problems needed to be able to respond to discovery so they asked for an extension of time.

What I will tell you is that having worked with ESI for the better part of 15 years, there will not be enough time for Vera Bradley to provide that discovery to Aixin Li and then allow them to be able to sufficiently examine, prepare for depositions, take depositions and follow up not only on testimony or additional documents that might be noted by those potential parties, but also to identify holes in the side that might be produced and be able to follow up on that and then be able to file subsequent motions to compel all before that 60 day period runs.

It’s just not enough time for that. What this really goes back to is you’ve got to start discovery very early on, and you’ve got to be paying attention to the details of discovery. Now, this is hard. It’s very hard because as lawyers, we all have multiple cases on our desk. We have multiple things that are happening at any given time. A lot of things happen as Chinese fire drills and the ability to be super proactive in discovery on each one of our cases is a challenge.

I’m telling you that with regard to ESI and a couple of other things that are happening within the court, namely that courts are refusing to allow longer extensions of discovery in ways that they have, we’re seeing shorter periods for discovery set up by courts except in perhaps very large consumer class actions. We’re also seeing that the courts are coming down hard on parties not cooperating and discovery. You’ve got to get on this stuff early. You’ve got to figure out if your opposing counsel is not going to cooperate. You’ve got to go to the court. You’ve got to get motions to compel. You’ve got to get orders from the court on those motions to compel, and you’ve got to move these things forward in order to best represent your client.

OK, moving now to the privilege log issues raised by the court, and this is a little bit more of a practical kind of thought process, which is the reason why I wanted to address this case. We’ve talked about a number of issues on the #caseoftheweek relating to privilege logs, what need to be included on privilege logs. And here, one of the things that I think is important, the court notes, is that the parties didn’t meet and confer on the privilege log issues before those were put into the motion to compel. Parties did meet and confer four times on other discovery issues that the court was considering, but not on the privilege log issues. I think if they had that, some of these issues would have been vetted out a little bit, blurted out a little bit among the parties, and they wouldn’t have been quite as messy for the court to resolve.

In effect, the defendants argue that the plaintiffs label a number of documents as privileged when in fact there was no attorney listed as to or from and then there were other documents where there were no parties listed, there was nobody listed on the to or from or there was not a sufficient basis listed to be able to determine privilege. The court looked at a few of those entries and found that the privilege log applies not only to attorney client privilege, but also to attorney work product information.

From a practical perspective, and obviously I can’t see the log that was provided by the parties here, if the basis for privilege is included as part of a log that might have precluded some of the issues here, you also need to make sure that you’re including all of the fields in the log so that the parties can do a sufficient analysis of that. Then when there are questions raised by the log, there should be a sufficient stand alone meet and confer to discuss the log so that issues can be addressed and parties can provide further information about specific documents that are at issue or questionable.

One of the things that we see a lot is that these privilege logs are not provided until the very close of discovery, which essentially precludes you being able to find out any more information about what’s included in the privilege log. You can certainly ask, but if you’re at close of discovery, you’re unlikely to get a lot of support from the court.

Again, timing on the motion to compel needs to be made before the close of discovery, which means a lot of these issues need to be resolved weeks in advance of the close of discovery so that you can make a motion as necessary and then be able to follow up.

On the privilege log here, there was another issue that the court raised in that the defendants listed what they claimed were attachments to privileged documents, but the attachments themselves were not privileged. But the plaintiffs stated in their briefs that they attached they included those non privileged attachments on the privilege log in order to be able to show what was sent with the privileged email. The court found that that really raised a question as to whether or not the plaintiffs waited to look at those non-privileged attachments until when they were putting together that privilege log and that as a result, it really cast a big shadow over the whole privilege log issue and the court asked as a quote, “How can one believe that the documents they continue to withhold are being withheld based on valid claims of privilege or work product?”

What you have to think about from a practical perspective is if you do that, if you wait to determine whether attachments that are sent to or from counsel are privileged and produce them with your privilege log, you’re really undermining the consideration of what you’ve included on your privilege log. Those decisions need to be made earlier on in discovery. Those decisions need to be made when you’re creating the fields for your review that are going to go into your privilege log, and you need to determine whether attachments are going to be considered privileged or not privileged. They need to be marked accordingly and then produced accordingly.

The court here really wanted to lean towards having the plaintiffs have waived all of the documents that were included on their privilege. I mean, the court specifically states that the plaintiff ought to have been found to have waived the privilege on all documents on their log. They didn’t point to a long string of cases in the 7th Circuit that were hesitant to find such sweeping waivers and as such, essentially ordered the plaintiffs to produce all of the documents that were listed on the log with no author or recipient and any documents that were described as notes protected by the work product doctrine that were not authored by an attorney or described as provided to counsel in anticipation of litigation.

In effect, the plaintiffs were required to produce documents that were otherwise listed on their privilege log. We won’t be able to know for purposes of this decision what kind of impact that has on the case, but it is pretty much an attorney’s worst nightmare to have to produce information that it otherwise would have included on a privilege log. So planning for and preparing your privilege log at the outset of the case, knowing and understanding what the privilege issues are and coding fields, and having your reviewers understand how privilege is being assigned and what needs to be coded for privilege in order to make those decisions upon production is very key.

OK, so that’s really the basis of the court’s decision. What are our takeaways? We’ve talked about some of them.

Really, I can impress upon you enough, start early. Start your discovery early. Meet with your client early about the information they have, about what is likely to be requested, and take those discovery requests as soon as you get them and start comparing them to what you’ve already learned about your clients. You should already be contacting custodian interviews, understanding the sources of ESI, collecting data prior to receiving written discovery responses.

Next takeaway. Make sure that you are going to the court as soon as you know you’re not getting what is needed.

If you can’t get a meet and confer on the books because the other side won’t meet and confer with you, you give them a drop dead date and you tell them that you will go to the court and advise them that you cannot get the other side to meet and confer with you. It should not take longer than a week to two weeks to get a meet and confer. You should provide in advance of the meet and confer exactly what the issues are that you want to discuss with the other side so they can be prepared.

Why do you want to do that? You want to do that so that when you go to the court on a motion to compel, you can say exactly what you’ve done to get the other side to cooperate. The goal is to get an order from the court so that they can give you a here’s an order to compel production of certain information or to have responses when the other side doesn’t meet, that you have a basis for moving for sanctions under Rule 37.

Waiting until the last minute to move to compel sitting on, meet and converse, letting the other side drive the timeline is only going to prejudice your client when it comes to information. We’ve talked about this on multiple #caseofthe week sessions, but you need time with the data. You need to not only understand the technical issues associated with the data, you need to make sure you get the right format of information. But then you need to start looking at the data. You need to understand the metadata. You need to understand the relationships of the people who are providing the data.

You need to really understand what the scope of information is here on which Vera Bradley made a complaint for trademark infringement. As best I can tell from reading this decision, as of the close of discovery, the plaintiff still did or the defendants, I’m sorry, still did not have the information about what plaintiff’s true basis was for bringing this complaint. That does not seem like a great use of the defendant’s money.

Boilerplate objections are dangerous.

Next, take away, make sure you’re reviewing the case law.

I know that we’ve got a blog post out there on boilerplate objections. We’ll put that out for you some more on social media. You can also visit our blog at eDiscovery Assistant and put in boilerplate in the search box to be able to get to that post. You’ve got to review that case law and understand that just using boilerplate objections will subject you to waiver on those objections, and then you won’t be able to have any basis for objections to requests at all.

You need to make specific objections to each request and have a legitimate basis for that specific request. Looking back at the interrogatory, asking for all the facts and the witnesses to be identified by Vera Bradley, they didn’t appear to be a lot of the basis for objection there. It did sound like in later in the decision that Vera Bradley had, in fact, provided some information on that request. But it’s really important to note that you’ve got to provide specific, well-founded objections to each individual request. The boilerplate objections are not going to do it.

Timing is going to be key. You’ve got to know what you have in discovery before you’re filing those responses, which means you have to start early again, avoid writing out written responses and objections to discovery requests without truly knowing what your client’s position is on each individual request.

Next, take away. If you’re going to file a motion to compel, you need to make sure you have a specific case law to support each one of your positions. A blanket statement of undue burden, proportionality, anything is just it’s going to be a waiver under federal law. That’s what the court’s saying here and gives a long line of 7th Circuit precedent to be able to support that.

Next, take away the privilege log is very key. We know this we want to protect our client’s privileged information. You need to plan for that privilege log at the outset of discovery. You need to create a privilege filter of attorney names, law firms, other issues that will come up that will create privilege issues. Add that as a filter to your review platform and highlight that information early. Have someone specifically who’s reviewing privileged information so that you can have a comprehensive understanding of what’s happening with privilege and make sure that your coding panel for review also includes fields for your privilege log so that you’re making sure you’re not only providing the two from the standard fields of metadata, but you’re also providing the basis for privilege and any notes or questions that need to be considered on a final review of including that document on the privilege log.

What? I’m going to re-emphasize our very last takeaway, which I know I’ve talked about a number of times, but it could not be more crucial. When I started practicing more than two decades ago, it was standard for you to get a complaint in and for it to sit for several months before you started discovery. We simply can’t do that anymore. The advent of electronic information means that there’s so much more to the discovery process than there ever has been.

We don’t simply get file folders or documents from our clients anymore. We have increased obligations as counsel to go and get that information. You’ve got to start your discovery process before you receive a written request for production. Before you respond to those written requests for production, you’ve got to have an understanding of where your client is with regard to information that needs to be provided for purposes of the litigation. You can make constructive decisions about proportionality, about undue burden, about settlement, about what discovery is going to mean, what it’s going to cost for your client. Starting early has so many advantages for your client.

The last take away is our usual document, document, document. As you’re building this information for your client, for this particular case, create a report that will allow them to leverage it for other matters. If you are consistently counsel for this client, handling whether it’s trademark infringement or other cases, allow them to leverage the information that you learn in discovery for this case. For other matters, you’ll increase your value to the client. The client will be thrilled. It’s a win-win all around.

That’s our #CaseoftheWeek for this week. Thanks so much for joining me. I’ll be back next week with another edition of our #CaseoftheWeek from eDiscovery Assistant. Have a great week. Stay safe and healthy. Hug your loved ones close, and I look forward to seeing you next week. Thank you.