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Do You Know What You Don't Know?

“This order is about agreements.” Very little after that pithy opening sentence in Magistrate Judge Thomas S. Hixson’s Apr. 25, 2023, order in In re StubHub Refund Litigation, 20-md-02951-HSG (TSH) (N.D. Cal.) is good for StubHub. It harkens what is to come just as well as the opening sentences of some great novels.

That being said, an alternative (but harsher) opening sentence could have been, “Do you know what you don’t know?” Judging from the content of the order, StubHub may not know the answer to that question. Judge Hixson’s discussion of agreements in litigation is the order’s clear theme, but an implied theme is also the dangers of unknown unknowns in discovery.

In the litigation, the parties agreed to an ESI protocol, and the agreement was entered as an order. So far, so good. However, it seems that StubHub’s document production did not meet the protocol’s requirements and the plaintiffs pursued a motion to compel. The order addresses StubHub’s failure to produce related documents either at all or in a way that keeps document families together, seemingly in two primary contexts: (1) emails with attachments, and (2) documents containing links to additional documents (e.g., a sales flyer that contains a link to a document setting out boilerplate terms and conditions). While it appears StubHub produced some of the attachments and linked documents, they were not produced in a way that connected related documents to each other. That is, somewhere in StubHub’s document production were parent documents (i.e., emails or documents containing links) and child documents (i.e., attachments or documents reached via hyperlinks), but nothing connected them to each other. The plaintiffs were left to guess which documents in the production set connected to which documents, and that’s if the child documents were produced at all—StubHub did not dispute that many child documents were not produced.

The court focused on the fact that StubHub had agreed to an ESI protocol and then failed to either live up to it or seek relief from it. The court was clearly troubled by this; thus, the order’s opening sentence and ensuing discussion about the role of agreements in litigation. The order sets out the specific provisions of the ESI protocol at issue and explains its conclusion regarding how StubHub failed to meet those agreed-upon requirements.

The court recounts several explanations or “examples” of possible explanations StubHub offered. “[StubHub] doesn’t know the specific reason why it was unable to produce the linked documents.” The laundry list of “examples” and “possibilities” StubHub offered as to why the document production did not meet the protocol requirements gives the impression that at some point, StubHub did not know what it did not know. Maybe it agreed to an ESI protocol not knowing its implications and did not realize that until the plaintiffs raised the issue, or it may not have known that its document collection methods failed to meet the protocol’s requirements.

The order expresses clear displeasure, yet gives StubHub an opportunity to navigate its way out of the danger zone. Procedurally, the order grants the plaintiffs’ motion to compel and orders StubHub to produce its documents in conformity with the ESI protocol “by the deadline to complete document production.” Failure to do so will require StubHub to produce a 30(b)(6) witness “with full knowledge of everything StubHub and its vendors did in attempting to produce linked documents” as required by the protocol. “After that deposition, Plaintiffs can decide if they have a good sanctions motion or not.” The order also expressly allows StubHub to seek modification of the ESI protocol if for some reason it still cannot conform to it. I suspect that would be a difficult prospect at that point given the order’s specific note that StubHub had not requested such relief thus far. The order does not address attorneys’ fees for the motion to compel.

The order presents several takeaways for litigation counsel, including:

· Use an ESI protocol. Without one, the requesting party may be left with arguing that a document production is not reasonable under court rules, which is often much more difficult than showing failure to comply with an ESI protocol. Consider having the protocol entered as an order, even if the parties agree to its terms. The argument that a protocol requires a certain form of production or certain data to accompany the production is much easier than arguing the document production does not conform to applicable rules of court.

· Document collection efforts. What sources were collected? What efforts or methods were used? Too many of StubHub’s responses and explanations indicate it was not able to describe its collection efforts in any significant detail. Do not allow your explanation of your discovery efforts to have unknown unknowns.

· Understand what a proposed ESI protocol requires and what you and your client need in it. As Magistrate Judge Hixson observed, “Litigants should figure out what they are able to do before they enter into an agreement to do something.” (Emphasis original.) ESI protocols get very technical. Consult your client’s IT, database managers, document custodians, your ESI vendor/litigation support team, and whoever else helps you understand the terms and implications of the proposed protocol. Conduct any necessary early case assessment and custodian interviews before an ESI protocol is executed. If your firm does not have the needed expertise, your client does not have the resources or support, or both, engage the necessary vendors to assist you in the matter. Unknown unknowns can be problematic.

· Seek relief early if you or your client cannot meet the requirements of the protocol, and offer a proposed solution.

· Consider an eDiscovery special master in the case, depending on its complexity, the court, and the parties/counsel.

Invenius regularly advises lawyers concerning a range of eDiscovery issues, such as:

· Meet and confer efforts

· Drafting ESI protocols

· Consulting as to discovery requests to obtain data you can use

· Discovery project management

· Using litigation, eDiscovery, and information management experience to help counsel, client, the data team, and discovery vendor communicate and work together

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