1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JACQUELINE JACKSON, Case No. 24-cv-00812-PCP (VKD)
Plaintiff, 9 ORDER RE DISCOVERY DISPUTE RE v. ESI PROTOCOL 10 Re: Dkt. No. 46 11 LINKEDIN CORPORATION, Defendant. 12
13 14 Plaintiff Jacqueline Jackson and defendant LinkedIn Corporation (“LinkedIn”) ask the 15 Court to resolve disputes involving several provisions of their proposed protocol for discovery of 16 electronically stored information (“ESI”). Dkt. No. 46. The Court finds this matter suitable for 17 resolution without oral argument. Civil L.R. 7-1(b). 18 The Court orders as follows: 19 1. Section 4: Dates for preservation of ESI 20 The parties disagree about the time frame for preservation of potentially relevant ESI. The 21 Court agrees with LinkedIn that February 9, 2019, which is one year before the earliest actionable 22 conduct at issue in the case, is an appropriate reference point for preservation as a general matter. 23 However, Ms. Jackson says that she has or will seek discovery regarding whether LinkedIn 24 designed the Insight Tag knowing or intending that it would be used to collect, store, and transmit 25 to LinkedIn personal information of visitors to a web page on which an Insight Tag has been 26 installed, such as the “personal disability information” of individuals like Ms. Jackson who visited 27 the DMV website to apply for, renew, or check the status of a disability placard. Dkt. No. 46 at 2. 1 the design and development of the Insight Tag, which she believes occurred in or around 2 September 2016. LinkedIn responds that this argument is “meritless” and that “to the extent that 3 any development-stage plan for the use of Insight Tag data became reality, LinkedIn’s 4 preservation proposal would capture those [documents],” presumably on the theory that this 5 information would likely appear in documents generated since February 9, 2019. Id. at 4. 6 As Ms. Jackson acknowledges, her proposal would require LinkedIn to preserve ESI 7 dating back to September 1, 2016—more than seven and one-half years of data. This proposal, if 8 it is meant to encompass all proposed custodial and non-custodial sources, is not reasonable. 9 However, information regarding LinkedIn’s knowledge and intent in offering and promoting the 10 Insight Tag to entities, such as the DMV, appears to be relevant and some information may indeed 11 be found in documents generated at the time the Insight Tag was first made available. Thus, Ms. 12 Jackson has offered some justification for preserving ESI on this topic. 13 Having considered the parties’ respective arguments, the Court concludes that the parties 14 need not preserve any ESI created or received before February 9, 2019, with the following 15 exception: The parties shall confer regarding the custodial and non-custodial sources most likely 16 to contain relevant, non-duplicative information regarding the purposes for which the Insight Tag 17 was developed, LinkedIn’s knowledge of the nature of the information likely to be transmitted via 18 Insight Tag, and its intent in making the Insight Tag available generally. If the Court ultimately 19 requires LinkedIn to preserve ESI earlier than February 9, 2019 (such as for a reasonable time 20 period in or around September 2016), that preservation obligation will be limited to only those 21 specific sources likely to have relevant, non-duplicative information on this specific topic. The 22 Court encourages the parties to reach agreement on this point and advise the Court of their 23 proposal, as directed below. 24 2. Section 5(b): Search methodologies 25 Hit reports. The parties disagree about whether a producing party must provide “hit 26 reports” disclosing how many “unique hits, hits with families, and total number of documents hit” 27 for each search term a producing party discloses to a requesting party. Ms. Jackson contends that 1 search terms, arguing that without such reports the requesting party “is entirely in the dark about 2 the efficacy of the search terms.” Id. at 2. LinkedIn objects that disclosure of initial hit reports is 3 unnecessary and unduly burdensome. LinkedIn proposes instead that the parties should only be 4 required to provide hit reports that are “reasonably available and reasonable in scope” after 5 counsel have conferred about proposed search terms and genuine disputes remain. Id. at 5. 6 As a general matter, a hit report reveals very little about how effective a search term is in 7 identifying relevant and responsive documents. While some inferences might be drawn from the 8 number of hits—e.g., a search term that generates an unexpectedly large number of hits may be 9 capturing an unreasonable number of irrelevant documents—for the most part, the Court expects 10 there is little utility in requiring disclosure of hit reports as a matter of course for every search term 11 at the time a producing party first proposes its search terms. However, the Court agrees that hit 12 reports can be a useful tool as part of the parties’ efforts to resolve disputes about specific search 13 terms. 14 Null set. The parties also disagree about whether Ms. Jackson may “reserve the right to 15 request LinkedIn to review a ‘null set sample’ . . . that is a “statistically valid (95% ±5), randomly 16 generated sample set of documents from a given data source that do not hit on any search terms,” 17 so that the parties can evaluate whether LinkedIn’s search terms are missing too many relevant 18 documents. Id. at 3 & Ex. 2. Ms. Jackson emphasizes that she is not asking the Court to require 19 LinkedIn to review a null set sample for every data source; she is merely reserving the right to 20 make the request. Id. at 3. 21 The Court agrees that review of a null set sample may be useful and appropriate where 22 there is reason to believe that the application of search terms has not adequately captured the 23 collection of potentially relevant and responsive documents for review. However, the Court sees 24 no reason to include a statement of Ms. Jackson’s “right to request” use of a null sample review in 25 the ESI protocol. Either party may make such a request of the other if and when it is appropriate 26 to do so. 27 Thus, the Court will not include Ms. Jackson’s proposed text for Section 5(b), and instead 1 3. Section 7(b): Clawback procedures 2 Invoking Rule 502(d) of the Federal Rules of Evidence, the parties agree that “the 3 production or disclosure of attorney-client privileged or work-product-protected documents . . . 4 whether inadvertent or otherwise, shall not result in the waiver of any claim of privilege or work 5 product protection . . ..” See Dkt. No. 46-1 at 10 (sec. 7(a)). They disagree regarding whether a 6 receiving party may use the contents of a document that is clawed back from production by a 7 producing party under Section 7(b) of the ESI protocol to challenge the producing party’s claim of 8 privilege or protection for that document. See Dkt. No. 46 at 3, 6. 9 Absent a stipulation adopting different procedures, the procedures for disputing a privilege 10 or protection claim are set forth in Rule 26(b)(5) of the Federal Rules of Civil Procedure. If 11 information subject to a claim of privilege or protection has already been produced, the producing 12 party may notify the receiving party of the claim and the basis therefor. Fed. R. Civ. P. 13 26(b)(5)(B).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JACQUELINE JACKSON, Case No. 24-cv-00812-PCP (VKD)
Plaintiff, 9 ORDER RE DISCOVERY DISPUTE RE v. ESI PROTOCOL 10 Re: Dkt. No. 46 11 LINKEDIN CORPORATION, Defendant. 12
13 14 Plaintiff Jacqueline Jackson and defendant LinkedIn Corporation (“LinkedIn”) ask the 15 Court to resolve disputes involving several provisions of their proposed protocol for discovery of 16 electronically stored information (“ESI”). Dkt. No. 46. The Court finds this matter suitable for 17 resolution without oral argument. Civil L.R. 7-1(b). 18 The Court orders as follows: 19 1. Section 4: Dates for preservation of ESI 20 The parties disagree about the time frame for preservation of potentially relevant ESI. The 21 Court agrees with LinkedIn that February 9, 2019, which is one year before the earliest actionable 22 conduct at issue in the case, is an appropriate reference point for preservation as a general matter. 23 However, Ms. Jackson says that she has or will seek discovery regarding whether LinkedIn 24 designed the Insight Tag knowing or intending that it would be used to collect, store, and transmit 25 to LinkedIn personal information of visitors to a web page on which an Insight Tag has been 26 installed, such as the “personal disability information” of individuals like Ms. Jackson who visited 27 the DMV website to apply for, renew, or check the status of a disability placard. Dkt. No. 46 at 2. 1 the design and development of the Insight Tag, which she believes occurred in or around 2 September 2016. LinkedIn responds that this argument is “meritless” and that “to the extent that 3 any development-stage plan for the use of Insight Tag data became reality, LinkedIn’s 4 preservation proposal would capture those [documents],” presumably on the theory that this 5 information would likely appear in documents generated since February 9, 2019. Id. at 4. 6 As Ms. Jackson acknowledges, her proposal would require LinkedIn to preserve ESI 7 dating back to September 1, 2016—more than seven and one-half years of data. This proposal, if 8 it is meant to encompass all proposed custodial and non-custodial sources, is not reasonable. 9 However, information regarding LinkedIn’s knowledge and intent in offering and promoting the 10 Insight Tag to entities, such as the DMV, appears to be relevant and some information may indeed 11 be found in documents generated at the time the Insight Tag was first made available. Thus, Ms. 12 Jackson has offered some justification for preserving ESI on this topic. 13 Having considered the parties’ respective arguments, the Court concludes that the parties 14 need not preserve any ESI created or received before February 9, 2019, with the following 15 exception: The parties shall confer regarding the custodial and non-custodial sources most likely 16 to contain relevant, non-duplicative information regarding the purposes for which the Insight Tag 17 was developed, LinkedIn’s knowledge of the nature of the information likely to be transmitted via 18 Insight Tag, and its intent in making the Insight Tag available generally. If the Court ultimately 19 requires LinkedIn to preserve ESI earlier than February 9, 2019 (such as for a reasonable time 20 period in or around September 2016), that preservation obligation will be limited to only those 21 specific sources likely to have relevant, non-duplicative information on this specific topic. The 22 Court encourages the parties to reach agreement on this point and advise the Court of their 23 proposal, as directed below. 24 2. Section 5(b): Search methodologies 25 Hit reports. The parties disagree about whether a producing party must provide “hit 26 reports” disclosing how many “unique hits, hits with families, and total number of documents hit” 27 for each search term a producing party discloses to a requesting party. Ms. Jackson contends that 1 search terms, arguing that without such reports the requesting party “is entirely in the dark about 2 the efficacy of the search terms.” Id. at 2. LinkedIn objects that disclosure of initial hit reports is 3 unnecessary and unduly burdensome. LinkedIn proposes instead that the parties should only be 4 required to provide hit reports that are “reasonably available and reasonable in scope” after 5 counsel have conferred about proposed search terms and genuine disputes remain. Id. at 5. 6 As a general matter, a hit report reveals very little about how effective a search term is in 7 identifying relevant and responsive documents. While some inferences might be drawn from the 8 number of hits—e.g., a search term that generates an unexpectedly large number of hits may be 9 capturing an unreasonable number of irrelevant documents—for the most part, the Court expects 10 there is little utility in requiring disclosure of hit reports as a matter of course for every search term 11 at the time a producing party first proposes its search terms. However, the Court agrees that hit 12 reports can be a useful tool as part of the parties’ efforts to resolve disputes about specific search 13 terms. 14 Null set. The parties also disagree about whether Ms. Jackson may “reserve the right to 15 request LinkedIn to review a ‘null set sample’ . . . that is a “statistically valid (95% ±5), randomly 16 generated sample set of documents from a given data source that do not hit on any search terms,” 17 so that the parties can evaluate whether LinkedIn’s search terms are missing too many relevant 18 documents. Id. at 3 & Ex. 2. Ms. Jackson emphasizes that she is not asking the Court to require 19 LinkedIn to review a null set sample for every data source; she is merely reserving the right to 20 make the request. Id. at 3. 21 The Court agrees that review of a null set sample may be useful and appropriate where 22 there is reason to believe that the application of search terms has not adequately captured the 23 collection of potentially relevant and responsive documents for review. However, the Court sees 24 no reason to include a statement of Ms. Jackson’s “right to request” use of a null sample review in 25 the ESI protocol. Either party may make such a request of the other if and when it is appropriate 26 to do so. 27 Thus, the Court will not include Ms. Jackson’s proposed text for Section 5(b), and instead 1 3. Section 7(b): Clawback procedures 2 Invoking Rule 502(d) of the Federal Rules of Evidence, the parties agree that “the 3 production or disclosure of attorney-client privileged or work-product-protected documents . . . 4 whether inadvertent or otherwise, shall not result in the waiver of any claim of privilege or work 5 product protection . . ..” See Dkt. No. 46-1 at 10 (sec. 7(a)). They disagree regarding whether a 6 receiving party may use the contents of a document that is clawed back from production by a 7 producing party under Section 7(b) of the ESI protocol to challenge the producing party’s claim of 8 privilege or protection for that document. See Dkt. No. 46 at 3, 6. 9 Absent a stipulation adopting different procedures, the procedures for disputing a privilege 10 or protection claim are set forth in Rule 26(b)(5) of the Federal Rules of Civil Procedure. If 11 information subject to a claim of privilege or protection has already been produced, the producing 12 party may notify the receiving party of the claim and the basis therefor. Fed. R. Civ. P. 13 26(b)(5)(B). After being notified, the receiving party “must promptly return, sequester, or destroy 14 the specified information and any copies it has; must not use or disclose the information until the 15 claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it 16 before being notified; and may promptly present the information to the court under seal for 17 determination of the claim.” Id. Ms. Jackson’s proposal, which would permit a party to use the 18 contents of a clawed back document “for the purpose of challenging the privilege assertion,” is 19 inconsistent with Rule 26(b)(5). See In re Google RTB Consumer Priv. Litig., No. 21-cv-02155- 20 YGR (VKD), 2022 WL 1316586 (N.D. Cal. May 3, 2022) (rejecting similar proposal and 21 discussing relevant authority). 22 Accordingly, the Court rejects Ms. Jackson’s proposed text for Section 7(b)(iii)(1) and 23 adopts LinkedIn’s proposal. 24 4. Appendix A: Metadata fields 25 The parties disagree regarding whether a producing party should be required to include the 26 following metadata fields in its ESI production: AttachNames; Attachments; FilePath; and 27 NativeFileLink. It is not clear from the parties’ submission why Ms. Jackson wishes to include 1 that including these fields will require manual review for privilege, as there is no way to 2 || automatically exclude attachment or file names that reveal privileged information from these fields 3 for files and attachments withheld on grounds of privilege. Ms. Jackson does not address this 4 concern. 5 The Court does not have enough information to resolve this dispute. The parties must 6 || confer further regarding this dispute and must and report to the Court, as directed below. The 7 report must at least explain why Ms. Jackson believes these fields should be provided and how the 8 || privilege concerns LinkedIn raises can be addressed. 9 5. Further proceedings 10 The parties shall confer as directed above regarding the remaining disputes concerning 11 Section 4 and the metadata fields in the Appendix. They must jointly report back to the Court on 12 || the status of those disputes by July 29, 2024. The joint report shall not exceed 1,500 words total 5 13 or 750 words per party. Alternatively, if the parties resolve their remaining disagreements, they 14 || may simply submit a stipulated request for entry of an ESI protocol for the Court’s consideration. IT IS SO ORDERED. 16 || Dated: July 15, 2024
Vurguia®, Me □□□□□□□ Virginia K. DeMarchi 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28