December 18, 2024 • 18 mins
Discover the intricate details behind a pivotal court ruling involving Uber Technologies Inc. that is reshaping the landscape of electronic discovery. What happens when transparency in data preservation becomes paramount in litigation? Join me, Kelly Twigger, as I guide you through the unfolding legal drama of Uber's multi-district litigation over alleged sexual misconduct by its drivers. We'll unravel the implications of United States Magistrate Judge Lisa Cisneros' significant decision, focusing on the motion to compel Uber to reveal its litigation hold practices and ESI preservation details. As we explore this case, you'll gain valuable insights into the court's emphasis on the importance of custodial and non-custodial data in legal proceedings.
Understand the ripple effects of this ruling on large organizations and their ESI preservation obligations. The court's decision sheds light on the critical need for detailed information about data custodians and highlights the balance between proportionality and relevance in document preservation. We'll discuss how Uber's response to these demands has influenced the ongoing litigation and the broader implications for eDiscovery practices. Whether you're a legal professional or simply fascinated by the complexities of the legal system, this episode is packed with insights and practical guidance to keep you informed in the evolving realm of electronic data management.
Doe LS 340 v. Uber Techs., Inc.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:13):
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:34):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and eDiscovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:55):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in e-discovery
case law and how it shapes bothyour litigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
Subscribe or follow now tostart embracing the power of our
(01:19):
Case of the Week series broughtto you by eDiscovery Assistant.
This week's decision raises theissue of what details a party
(01:39):
has to provide about thecustodians and legal hold put in
place for a matter.
This decision is one of severalover the last few years that is
requiring parties to exchangemuch more detail about
custodians on hold and theefforts to preserve ESI,
including what sources of ESIare being preserved and when.
All right, let's dive into thisweek's decision.
(02:00):
It comes to us from EnRA,ubertech's Passenger Sexual
Assault Litigation.
The title for this actualdecision is Doe vs Uber
Technologies Inc, but it is partof the larger series of the MDL
litigation.
This is a decision from January9th of 2024 from United States
Magistrate Judge Lisa Cisneros.
(02:21):
Judge Cisneros has 24 cases inour e-discovery system database
and, as always, we add theissues for each of the decisions
in our database from ourproprietary issue tagging
structure.
Those issues for this week'sdecision include attorney-client
privilege, attorney work,product, legal hold, scope of
preservation and protectiveorder.
All right, what are the factsbefore us?
(02:42):
We are before the court on amotion to enforce pretrial order
number two and compel Uber toproduce information regarding
its litigation hold and thescope of its preservation of ESI
.
The underlying litigation hereis a multi-district litigation
in which plaintiffs who werealleged victims of sexual
(03:03):
assault or harassment by theirUber drivers alleged that Uber
failed to implement appropriatesafety precautions to protect
them.
The plaintiffs alleged thatUber was aware that its drivers
were engaging in sexualmisconduct or sexual assault
against their passengers asearly as 2014.
Prior to this MDL, multipleindividual cases against Uber
(03:24):
were filed in California statecourt, which were consolidated
according to that court'sstructure based on similar
allegations.
Now, in this case, on November3rd quote an interim measure
(03:44):
pending the party's proposal ofa more tailored order concerning
the preservation of relevantinformation and a way to ensure
the preservation of documentsand all ESI that may be
discoverable in relation to anyof the issues in this litigation
.
Close quote the parties thenbegan to meet and confer to
discuss the scope of Uber'sevidence, preservation efforts
(04:05):
and a proposed protective order.
Uber declined to providecertain information regarding
preservation efforts until aprotective order was entered.
The parties could not agree atheme we often see here on Case
of the Week and the plaintiffsfiled this motion on December 14
, 2023.
Now the final protective orderbetween the parties was issued
on December 28, 2023, so justtwo weeks later.
(04:28):
That also does not sound like avery fun holiday vacation for
the lawyers.
Once the order was issued, uberprovided some information on its
preservation efforts on January4 and January 8, 2024,
including a list of 15,700current and past employees
subject to a legal hold, withonly their job title, no names
(04:52):
and no information about whenthe holds were issued.
Of those 15,700, 10,200 of theemployees were on hold for other
unrelated matters.
So right now we just have alist of job titles that were
placed on hold, no otherinformation about the matter for
which they were placed on hold,who was in that job title at
(05:16):
the time, who the actual personis that's on hold.
The court then held a hearingon the motion on January 8, 2024
, at which Uber confirmed thatit had also produced documents
from the California cases inwhich it claimed represented all
of the information thatplaintiffs sought about the
sources of ESI, including bothcustodial and non-custodial
(05:36):
sources.
So remember here the plaintiffswant two things they want to
know about the custodians thatwere placed on hold and they
want to know about the sourcesof ESI that are related, both
custodial and non-custodial.
When we say non-custodial orcustodial, for those of you who
don't understand that term, thatmeans something that is within
a custodian's control.
So I, as a custodian, may havecontrol over my email, over
(05:59):
specific SharePoint sites, overSlack, over Teams, data,
whatever is specifically tied tome as a custodian and what you
would search, based on me as thecustodian, would be custodial
data.
Non-custodial data are datasources where information is
stored that are not tied to acustodian.
(06:20):
So think long-term databases or, like a salesforcecom, any kind
of business related databasethat stores information for the
company financial information,sales information, production
information.
Anything like that would be indatabases that would not be
custodian based.
So we call those non-custodialdata sources.
(06:40):
Now here, because the plaintiffshad not been able to review all
of the information provided byUber in advance of the hearing,
it asked the court to orderdisclosure of the categories
included in their motion, to theextent that Uber had not
already done so.
Now, if you listen to thetimeline here and that's always
one of the things we focus on oncase of the week you know that
(07:01):
this motion was filed onDecember 14th.
Uber ultimately producedinformation eight days after the
protective order was entered,on the 28th, on the 4th, and
then the hearing was held on the8th and Uber also produced more
information on the 8th.
So essentially, plaintiffs aresaying and the court is saying
nobody's had a chance to look atthe information that Uber
provided.
Now, what did the plaintiffsask here from the court?
(07:24):
Well, they asked the court toorder Uber to do three things
Immediately produce basicdetails surrounding its
litigation holds, including thenames, job titles and dates of
employment of the recipients ofthe hold notices, the dates of
issue and what litigation orclaim the holds relate to.
Two immediately discloseinformation as to the ESI
(07:45):
sources enumerated in pretrialorder number two, paragraph
three, including non-custodialsources that Uber has preserved
and when it preserved them, whensuch ESI sources were used,
what they were used for, thegeneral types of information
they house and which Uberemployees used or had access to
those sources.
And three, suspend Uber'scompany-wide document
(08:08):
destruction policies for aperiod of time to allow
plaintiffs to determine what, ifany, relevant ESI has been
destroyed.
All right, let's turn to thecourt's analysis on those three
asks.
The court begins here withUber's duty to preserve, stating
that as soon as a potentialclaim is identified, a party has
a duty to preserve evidencewhich it knows or reasonably
(08:29):
should know is relevant to theaction, including suspending any
document retention policy andputting a legal hold in place to
ensure preservation.
Now, none of that comes as asurprise to us.
We've known what the scope ofthe duty to preserve is and when
it arises for a very long time.
The court here also notes,however, that the duty to
preserve includes an obligationto quote, identify, locate and
(08:52):
maintain information that isrelevant to specific,
predictable and identifiablelitigation close quote but that
organizations are not requiredto preserve every document, and
that's going to be importantlater in our analysis.
Plaintiffs here argue that Uberunreasonably withheld basic
facts around his litigationholds, including names, job
(09:13):
titles, dates of employment foreach recipient, the dates of
issue and what claim the holdsrelate to, and that the
information they are requestingwas not subject to
attorney-client privilege.
Uber argues that theinformation they are requesting
was not subject toattorney-client privilege.
Uber argues that the Rule 26Fchecklist provided by the
Northern District of Californiastates that parties may provide
quote the names and or generaljob titles of descriptions for
(09:36):
custodians for whom ESI ispreserved close quote and that
they have complied with thelanguage of that checklist by
providing a list of job titles.
Now I think, looking at theface of the list that they
provided, as well as thechecklist, that it's pretty
obvious that Uber's actions arenot really in keeping with what
the court intended to beprovided under that checklist.
(09:58):
But let's hear what the courthas to say.
The court looked to recentprecedent and found that Uber's
position was not supported bythe law.
According to the court, thebasic details surrounding a
legal hold are not protected byeither the attorney client or
the work product privilege, andthat the details about the hold,
including when and to whomholds are given, are fair game.
(10:18):
The court also found that,while plaintiffs are not
entitled to exactly what Uberemployees were told through the
hold, they are entitled to knowwhat the employees are doing to
identify, collect and preserveESI.
Now, the disclosures thatplaintiffs sought here included
whether the legal hold relatedto a case or complaint involving
allegations of sexual assaultor sexual harassment, and Uber
(10:39):
says that the plaintiffs are notentitled to that information.
The court found here that theplaintiffs are entitled to that
information that allowed them toevaluate whether Uber had met
its preservation obligations and, given that a sexual harassment
or assault case could have putUber on notice of its duty to
preserve, uber was required totell plaintiffs which legal
holds pertained to any case orcomplaint alleging such behavior
(10:59):
by one of its drivers.
With that, the court grantedthe motion for information about
the legal holds pertains to anycase or complaint alleging such
behavior by one of its drivers.
With that, the court grantedthe motion for information about
the legal holds.
The court then turned to thesecond question about
information sought by plaintiffsabout Uber's sources of ESI,
and the court begins there byacknowledging that neither the
plaintiffs or the court havebeen able to review the
(11:19):
documents as I mentioned earlierin which Uber claims the
information that plaintiffsrequested is listed as such.
The court looked at the legalquestion of what Uber is
required to provide and heldthat quote.
Parties are entitled to knowwhat kinds and categories of ESI
a party has collected andpreserved and what specific
actions were taken to that end.
(11:40):
Close quote, citing thechecklist for the Rule 26 meet
and confer that I mentionedearlier.
The court held that quote.
The disclosure of information,including non-custodial sources
of the ESI, is expected in theordinary course of discovery.
Close quote, identify anddiscuss.
(12:08):
Quote a list of systems, if any, that contain ESI not
associated with individualcustodians.
Close quote, such as enterprisedatabases.
That's the non-custodial datasources that I was discussing
earlier.
The disclosure of non-custodialdata sources will facilitate
the party's ability to meet andconfer regarding the scope of
evidence preservation and, ifnecessary, propose a modified
preservation order for thiscourt's consideration.
That's what the court is hopingto get out of the party's
(12:30):
discussion.
Following that, the courtgranted plaintiffs motion in
part and required Uber todisclose the following
information about the sources ofESI it preserved and
specifically, what sources ofESI it preserved, when each
source was preserved, when eachESI source was used, what each
source was used for and thegeneral types of information
(12:50):
housed in each source.
Owing to the shared number ofemployees that Uber has, the
court declines to order Uber toprovide information about which
employees used or had access toeach source of ESI, as the
plaintiffs had requested.
Finally, the court addressedthe third request from
plaintiffs the requestedsuspension of Uber's document
(13:11):
destruction policies thatremained in place Now.
Plaintiffs alleged that thecontinued destruction policies
may be allowing for relevant ESIto be destroyed every day, and
they asked the court to suspendUber's destruction policies
until the parties could come toan agreement about a more
tailored preservation ordercontemplated by pretrial order
number two.
Plaintiffs argue that thenotice of the litigation began
(13:35):
no later than 2013, but thatUber maintained only a six-month
email retention policy fromSeptember 2015 to January 2023
and deleted Slack messages thatwere more than 90 days old
during that period In January2023, and deleted Slack messages
that were more than 90 days oldduring that period.
In January 2023, uber changedits email policy to retain
emails not subject to alitigation hold for 24 months.
(13:56):
Uber argued that Plaintiff'srequest was overbroad, that the
company-wide suspension affectsfar more than just its rideshare
application business, and thatthere's no legal basis to
support the request to take offall of their document retention
policies for the entire company.
The court agreed with Uber hereand found that the request was
overly broad, noting that Uberhas already suspended automatic
(14:19):
deletion of its emails forthousands of custodians.
The court also noted that theplaintiffs did not show that the
relief sought addressedplaintiffs' concerns about the
destruction of documents inearlier years and that a
suggestion that potentiallyrelevant ESI could be lost going
forward is not sufficient toorder the document destruction
policies to be taken offline.
(14:40):
With that, the court deniedplaintiffs' request to order the
suspension of Uber'scompany-wide policies.
What are our takeaways fromtoday's decision?
Well, the biggest takeaway fromtoday's case is that you need
to understand the scope ofinformation you may have to
provide about efforts toidentify and preserve ESI.
For a matter, this decision isnot an anomaly.
(15:01):
It's one that I brought upbecause it's back to basics
again.
It's a bigger scope herebecause it's an MDL and Uber is
a large company with more than20,000 employees, but that
doesn't change the legalprecedent of this case.
In fact, the decisions that thecourt cites to as a basis for
its decision here involveindividual parties.
That means that, regardless ofthe size of your client, you
(15:24):
need to be tracking all of thedata about your preservation
efforts.
That includes, for eachcustodian, the dates of the hold
that was sent, agreed to, thedates of the employment, the
custodian's role, title, sourcesof ESI, date of custodial
interview, etc.
Track everything.
For non-custodial data sources,you need to know the name of
(15:45):
the source, the types of datastored in it, the liaison for
that source, how long the sourcehas been active at the company
or the client and the date rangeof data stored in it.
How can you access that datasource, which includes working
with the liaison between legaland IT or whoever has access to
the source on preservationprocesses for each individual
(16:07):
source of ESI?
Now, in short, this decisionmakes it clear that in the
Northern District of California,parties do need to exchange
detailed information aboutefforts to preserve that are
both custodial and non-custodialsources of ESI, including when
legal holds were issued.
Now, those of us who work ineDiscovery 24-7 know that this
(16:27):
exchange of information is thebest way to move things forward
quickly, but there are risks ofinformation being provided, of
information that gets providedduring those exchanges becoming
public and suggesting largerorganizations to increase
litigation or requests that maynot be above board or on par
with the needs of the case.
That was Uber's concern here,and the court correctly narrowed
(16:49):
the focus of the motion to whatwas appropriate for the case.
For you representing clientswho are in larger organizations
who are going to receive thesetypes of requests, you need to
be on notice to be able to arguesufficiently, tailoring the
request so that the court canunderstand what is proportional
to the needs of the case andwhat is overly broad.
(17:11):
All right, that's our case ofthe week for this week.
Thanks so much for joining me.
We'll be back again next weekwith another decision from our
eDiscovery Assistant database,as always.
If you have suggestions for acase to be covered on the case
of the week, please drop me aline.
If you'd like to receive ourcase of the Week delivered to
your inbox via our weeklynewsletter.
You can sign up for that atediscoveryassistantcom backslash
blog and if you're interestedin doing a free trial of our
(17:33):
case law and resource database,please jump to
ediscoveryassistantcom to signup and get started.
Thanks for joining me on theCase of the Week podcast Tune in
next episode as I discuss a newdecision in eDiscovery case law
and identify the issues youneed to be paying attention to
and how they can help you dobetter discovery for your
clients and leverage the powerof ESI.
(17:54):
Be sure to subscribe and leavea review to help others discover
the show and be kept in theknow on all things electronic
discovery.
I'm Kelly Twigger.
See you next time.
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:34):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and eDiscovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:55):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in e-discovery
case law and how it shapes bothyour litigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
Subscribe or follow now tostart embracing the power of our
(01:19):
Case of the Week series broughtto you by eDiscovery Assistant.
This week's decision raises theissue of what details a party
(01:39):
has to provide about thecustodians and legal hold put in
place for a matter.
This decision is one of severalover the last few years that is
requiring parties to exchangemuch more detail about
custodians on hold and theefforts to preserve ESI,
including what sources of ESIare being preserved and when.
All right, let's dive into thisweek's decision.
(02:00):
It comes to us from EnRA,ubertech's Passenger Sexual
Assault Litigation.
The title for this actualdecision is Doe vs Uber
Technologies Inc, but it is partof the larger series of the MDL
litigation.
This is a decision from January9th of 2024 from United States
Magistrate Judge Lisa Cisneros.
(02:21):
Judge Cisneros has 24 cases inour e-discovery system database
and, as always, we add theissues for each of the decisions
in our database from ourproprietary issue tagging
structure.
Those issues for this week'sdecision include attorney-client
privilege, attorney work,product, legal hold, scope of
preservation and protectiveorder.
All right, what are the factsbefore us?
(02:42):
We are before the court on amotion to enforce pretrial order
number two and compel Uber toproduce information regarding
its litigation hold and thescope of its preservation of ESI
.
The underlying litigation hereis a multi-district litigation
in which plaintiffs who werealleged victims of sexual
(03:03):
assault or harassment by theirUber drivers alleged that Uber
failed to implement appropriatesafety precautions to protect
them.
The plaintiffs alleged thatUber was aware that its drivers
were engaging in sexualmisconduct or sexual assault
against their passengers asearly as 2014.
Prior to this MDL, multipleindividual cases against Uber
(03:24):
were filed in California statecourt, which were consolidated
according to that court'sstructure based on similar
allegations.
Now, in this case, on November3rd quote an interim measure
(03:44):
pending the party's proposal ofa more tailored order concerning
the preservation of relevantinformation and a way to ensure
the preservation of documentsand all ESI that may be
discoverable in relation to anyof the issues in this litigation
.
Close quote the parties thenbegan to meet and confer to
discuss the scope of Uber'sevidence, preservation efforts
(04:05):
and a proposed protective order.
Uber declined to providecertain information regarding
preservation efforts until aprotective order was entered.
The parties could not agree atheme we often see here on Case
of the Week and the plaintiffsfiled this motion on December 14
, 2023.
Now the final protective orderbetween the parties was issued
on December 28, 2023, so justtwo weeks later.
(04:28):
That also does not sound like avery fun holiday vacation for
the lawyers.
Once the order was issued, uberprovided some information on its
preservation efforts on January4 and January 8, 2024,
including a list of 15,700current and past employees
subject to a legal hold, withonly their job title, no names
(04:52):
and no information about whenthe holds were issued.
Of those 15,700, 10,200 of theemployees were on hold for other
unrelated matters.
So right now we just have alist of job titles that were
placed on hold, no otherinformation about the matter for
which they were placed on hold,who was in that job title at
(05:16):
the time, who the actual personis that's on hold.
The court then held a hearingon the motion on January 8, 2024
, at which Uber confirmed thatit had also produced documents
from the California cases inwhich it claimed represented all
of the information thatplaintiffs sought about the
sources of ESI, including bothcustodial and non-custodial
(05:36):
sources.
So remember here the plaintiffswant two things they want to
know about the custodians thatwere placed on hold and they
want to know about the sourcesof ESI that are related, both
custodial and non-custodial.
When we say non-custodial orcustodial, for those of you who
don't understand that term, thatmeans something that is within
a custodian's control.
So I, as a custodian, may havecontrol over my email, over
(05:59):
specific SharePoint sites, overSlack, over Teams, data,
whatever is specifically tied tome as a custodian and what you
would search, based on me as thecustodian, would be custodial
data.
Non-custodial data are datasources where information is
stored that are not tied to acustodian.
(06:20):
So think long-term databases or, like a salesforcecom, any kind
of business related databasethat stores information for the
company financial information,sales information, production
information.
Anything like that would be indatabases that would not be
custodian based.
So we call those non-custodialdata sources.
(06:40):
Now here, because the plaintiffshad not been able to review all
of the information provided byUber in advance of the hearing,
it asked the court to orderdisclosure of the categories
included in their motion, to theextent that Uber had not
already done so.
Now, if you listen to thetimeline here and that's always
one of the things we focus on oncase of the week you know that
(07:01):
this motion was filed onDecember 14th.
Uber ultimately producedinformation eight days after the
protective order was entered,on the 28th, on the 4th, and
then the hearing was held on the8th and Uber also produced more
information on the 8th.
So essentially, plaintiffs aresaying and the court is saying
nobody's had a chance to look atthe information that Uber
provided.
Now, what did the plaintiffsask here from the court?
(07:24):
Well, they asked the court toorder Uber to do three things
Immediately produce basicdetails surrounding its
litigation holds, including thenames, job titles and dates of
employment of the recipients ofthe hold notices, the dates of
issue and what litigation orclaim the holds relate to.
Two immediately discloseinformation as to the ESI
(07:45):
sources enumerated in pretrialorder number two, paragraph
three, including non-custodialsources that Uber has preserved
and when it preserved them, whensuch ESI sources were used,
what they were used for, thegeneral types of information
they house and which Uberemployees used or had access to
those sources.
And three, suspend Uber'scompany-wide document
(08:08):
destruction policies for aperiod of time to allow
plaintiffs to determine what, ifany, relevant ESI has been
destroyed.
All right, let's turn to thecourt's analysis on those three
asks.
The court begins here withUber's duty to preserve, stating
that as soon as a potentialclaim is identified, a party has
a duty to preserve evidencewhich it knows or reasonably
(08:29):
should know is relevant to theaction, including suspending any
document retention policy andputting a legal hold in place to
ensure preservation.
Now, none of that comes as asurprise to us.
We've known what the scope ofthe duty to preserve is and when
it arises for a very long time.
The court here also notes,however, that the duty to
preserve includes an obligationto quote, identify, locate and
(08:52):
maintain information that isrelevant to specific,
predictable and identifiablelitigation close quote but that
organizations are not requiredto preserve every document, and
that's going to be importantlater in our analysis.
Plaintiffs here argue that Uberunreasonably withheld basic
facts around his litigationholds, including names, job
(09:13):
titles, dates of employment foreach recipient, the dates of
issue and what claim the holdsrelate to, and that the
information they are requestingwas not subject to
attorney-client privilege.
Uber argues that theinformation they are requesting
was not subject toattorney-client privilege.
Uber argues that the Rule 26Fchecklist provided by the
Northern District of Californiastates that parties may provide
quote the names and or generaljob titles of descriptions for
(09:36):
custodians for whom ESI ispreserved close quote and that
they have complied with thelanguage of that checklist by
providing a list of job titles.
Now I think, looking at theface of the list that they
provided, as well as thechecklist, that it's pretty
obvious that Uber's actions arenot really in keeping with what
the court intended to beprovided under that checklist.
(09:58):
But let's hear what the courthas to say.
The court looked to recentprecedent and found that Uber's
position was not supported bythe law.
According to the court, thebasic details surrounding a
legal hold are not protected byeither the attorney client or
the work product privilege, andthat the details about the hold,
including when and to whomholds are given, are fair game.
(10:18):
The court also found that,while plaintiffs are not
entitled to exactly what Uberemployees were told through the
hold, they are entitled to knowwhat the employees are doing to
identify, collect and preserveESI.
Now, the disclosures thatplaintiffs sought here included
whether the legal hold relatedto a case or complaint involving
allegations of sexual assaultor sexual harassment, and Uber
(10:39):
says that the plaintiffs are notentitled to that information.
The court found here that theplaintiffs are entitled to that
information that allowed them toevaluate whether Uber had met
its preservation obligations and, given that a sexual harassment
or assault case could have putUber on notice of its duty to
preserve, uber was required totell plaintiffs which legal
holds pertained to any case orcomplaint alleging such behavior
(10:59):
by one of its drivers.
With that, the court grantedthe motion for information about
the legal holds pertains to anycase or complaint alleging such
behavior by one of its drivers.
With that, the court grantedthe motion for information about
the legal holds.
The court then turned to thesecond question about
information sought by plaintiffsabout Uber's sources of ESI,
and the court begins there byacknowledging that neither the
plaintiffs or the court havebeen able to review the
(11:19):
documents as I mentioned earlierin which Uber claims the
information that plaintiffsrequested is listed as such.
The court looked at the legalquestion of what Uber is
required to provide and heldthat quote.
Parties are entitled to knowwhat kinds and categories of ESI
a party has collected andpreserved and what specific
actions were taken to that end.
(11:40):
Close quote, citing thechecklist for the Rule 26 meet
and confer that I mentionedearlier.
The court held that quote.
The disclosure of information,including non-custodial sources
of the ESI, is expected in theordinary course of discovery.
Close quote, identify anddiscuss.
(12:08):
Quote a list of systems, if any, that contain ESI not
associated with individualcustodians.
Close quote, such as enterprisedatabases.
That's the non-custodial datasources that I was discussing
earlier.
The disclosure of non-custodialdata sources will facilitate
the party's ability to meet andconfer regarding the scope of
evidence preservation and, ifnecessary, propose a modified
preservation order for thiscourt's consideration.
That's what the court is hopingto get out of the party's
(12:30):
discussion.
Following that, the courtgranted plaintiffs motion in
part and required Uber todisclose the following
information about the sources ofESI it preserved and
specifically, what sources ofESI it preserved, when each
source was preserved, when eachESI source was used, what each
source was used for and thegeneral types of information
(12:50):
housed in each source.
Owing to the shared number ofemployees that Uber has, the
court declines to order Uber toprovide information about which
employees used or had access toeach source of ESI, as the
plaintiffs had requested.
Finally, the court addressedthe third request from
plaintiffs the requestedsuspension of Uber's document
(13:11):
destruction policies thatremained in place Now.
Plaintiffs alleged that thecontinued destruction policies
may be allowing for relevant ESIto be destroyed every day, and
they asked the court to suspendUber's destruction policies
until the parties could come toan agreement about a more
tailored preservation ordercontemplated by pretrial order
number two.
Plaintiffs argue that thenotice of the litigation began
(13:35):
no later than 2013, but thatUber maintained only a six-month
email retention policy fromSeptember 2015 to January 2023
and deleted Slack messages thatwere more than 90 days old
during that period In January2023, and deleted Slack messages
that were more than 90 days oldduring that period.
In January 2023, uber changedits email policy to retain
emails not subject to alitigation hold for 24 months.
(13:56):
Uber argued that Plaintiff'srequest was overbroad, that the
company-wide suspension affectsfar more than just its rideshare
application business, and thatthere's no legal basis to
support the request to take offall of their document retention
policies for the entire company.
The court agreed with Uber hereand found that the request was
overly broad, noting that Uberhas already suspended automatic
(14:19):
deletion of its emails forthousands of custodians.
The court also noted that theplaintiffs did not show that the
relief sought addressedplaintiffs' concerns about the
destruction of documents inearlier years and that a
suggestion that potentiallyrelevant ESI could be lost going
forward is not sufficient toorder the document destruction
policies to be taken offline.
(14:40):
With that, the court deniedplaintiffs' request to order the
suspension of Uber'scompany-wide policies.
What are our takeaways fromtoday's decision?
Well, the biggest takeaway fromtoday's case is that you need
to understand the scope ofinformation you may have to
provide about efforts toidentify and preserve ESI.
For a matter, this decision isnot an anomaly.
(15:01):
It's one that I brought upbecause it's back to basics
again.
It's a bigger scope herebecause it's an MDL and Uber is
a large company with more than20,000 employees, but that
doesn't change the legalprecedent of this case.
In fact, the decisions that thecourt cites to as a basis for
its decision here involveindividual parties.
That means that, regardless ofthe size of your client, you
(15:24):
need to be tracking all of thedata about your preservation
efforts.
That includes, for eachcustodian, the dates of the hold
that was sent, agreed to, thedates of the employment, the
custodian's role, title, sourcesof ESI, date of custodial
interview, etc.
Track everything.
For non-custodial data sources,you need to know the name of
(15:45):
the source, the types of datastored in it, the liaison for
that source, how long the sourcehas been active at the company
or the client and the date rangeof data stored in it.
How can you access that datasource, which includes working
with the liaison between legaland IT or whoever has access to
the source on preservationprocesses for each individual
(16:07):
source of ESI?
Now, in short, this decisionmakes it clear that in the
Northern District of California,parties do need to exchange
detailed information aboutefforts to preserve that are
both custodial and non-custodialsources of ESI, including when
legal holds were issued.
Now, those of us who work ineDiscovery 24-7 know that this
(16:27):
exchange of information is thebest way to move things forward
quickly, but there are risks ofinformation being provided, of
information that gets providedduring those exchanges becoming
public and suggesting largerorganizations to increase
litigation or requests that maynot be above board or on par
with the needs of the case.
That was Uber's concern here,and the court correctly narrowed
(16:49):
the focus of the motion to whatwas appropriate for the case.
For you representing clientswho are in larger organizations
who are going to receive thesetypes of requests, you need to
be on notice to be able to arguesufficiently, tailoring the
request so that the court canunderstand what is proportional
to the needs of the case andwhat is overly broad.
(17:11):
All right, that's our case ofthe week for this week.
Thanks so much for joining me.
We'll be back again next weekwith another decision from our
eDiscovery Assistant database,as always.
If you have suggestions for acase to be covered on the case
of the week, please drop me aline.
If you'd like to receive ourcase of the Week delivered to
your inbox via our weeklynewsletter.
You can sign up for that atediscoveryassistantcom backslash
blog and if you're interestedin doing a free trial of our
(17:33):
case law and resource database,please jump to
ediscoveryassistantcom to signup and get started.
Thanks for joining me on theCase of the Week podcast Tune in
next episode as I discuss a newdecision in eDiscovery case law
and identify the issues youneed to be paying attention to
and how they can help you dobetter discovery for your
clients and leverage the powerof ESI.
(17:54):
Be sure to subscribe and leavea review to help others discover
the show and be kept in theknow on all things electronic
discovery.
I'm Kelly Twigger.
See you next time.
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