Plaintiff Mr. Corkery filed an emergency motion to amend or remove redactions to a document that he planned to use in an upcoming deposition. He also sought a privilege log for the redactions, “if any applies.”

Defendant Coinstar objected.  At issue was “whether Coinstar’s production of approximately 2,000 pages of redacted board meeting minutes was improper.”   Corkery v. Coinstar, LLC, 2026 WL 3001353 (D.R.I. Oct. 6, 2026).

The redaction of 2,000 out of 2,600 pages took place in a unique procedural posture.

Coinstar explains that these redacted documents were produced not in response to a discovery request but rather voluntarily out of fairness under Federal Rule of Evidence 612(b) because they were reviewed by a witness in preparation for his deposition testimony.

Id. at *2 (emphasis added).  Further, Coinstar added that the “witness reviewed the documents in redacted form while preparing for the deposition….”  Id. at *2. Coinstar added that no privilege log was required because it was not withholding the documents based on privilege. Id.

The Corkery court wrote:

Rule 612 of the Federal Rules of Evidence pertains to writings that are used to refresh the memory of a witness either while or before testifying. Rule 612(b) provides that “an adverse party is entitled to have the writing[.]” Here, the writing used to prepare the witness to testify was provided to the opposing party in the same redacted form that the witness reviewed it in preparation for his testimony. Mr. Corkery has not provided any authority, nor has the Court found any, indicating that an unredacted document must be provided when a witness prepared with a redacted document.

Id. at *3 (emphasis added).

As to the privilege log: “Here, the document was provided in the same format it was used to prepare a witness, with redactions. There is nothing before the Court to indicate that any of those redactions were for privilege, nor has Mr. Corkery provided any authority indicating that if documents provided pursuant to Rule 612(b) of the Federal Rules of Evidence are redacted for privilege, then a log must be produced.”

Corkery addresses a unicorn. Redactions for relevance are generally prohibited or disfavored. One exception, discussed in Episode 110: When are Relevancy Redactions Allowed in Responsive Documents? | Minerva26, is Kaiser Aluminum Warrick, LLC v. U.S Magnesium, LLC., No. 22-CV-3105 (JGK) (KHP) (S.D.N.Y. Feb. 27, 2023), where New York Magistrate Judge Katherine H. Parker, stated: “Although many courts do not permit relevancy redactions, this Court believes relevancy redactions can be appropriate in some cases.” Judge Parker did permit the defendant to retain redactions on “information irrelevant to this action”. However, she also wrote: “the parties shall seek the leave of the opposing party or the Court before redacting any future documents.”

Including the Kaiser Aluminum Warrick case, here are other cases involving redaction for relevancy:

• Berman, ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (Ediscovery, LLC May 14, 2025);
• Austin, Produce Unredacted Versions of Non-Privileged Text Messages, Says Court (eDiscoveryToday Jan. 8, 2025);
• Austin, Produce Unredacted Versions of Leases, Court Orders (eDiscoveryToday Nov. 6, 2024);
• Berman, Relevance Redactions Prohibited – Again (Ediscovery, LLC May 17, 2024);
• Berman, 8 Lessons Learned – Part III – Redaction Provision of ESI Protocol (Ediscovery, LLC May 8, 2024);
• Berman, Relevance Redactions Revisited (Ediscovery, LLC Jul. 5, 2023);
• Austin, Relevancy Redactions Allowed in Part by Court (eDiscoveryToday Jun. 7, 2023);
• Berman, Relevance Redactions Rejected – Rule 26(f) Resolution (Ediscovery, LLC Mar. 23, 2022);
• Austin, Redacted Audio Leads to Court Compelling Production of Full Videos (eDiscoveryToday Feb. 2, 2022).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

Plaintiff, X.AI, produces and develops A.I. models that it shares with the public. It filed suit to enjoin enforcement and moved for a preliminary injunction.  The motion was denied.  However, the court left the door open and wrote that the preliminary injunction decision was only a “threshold inquiry.”

THE SCOPE OF A.I. TRAINING IS IMPORTANT

The X.AI court’s analysis is of interest to general civil and criminal litigation because the scope of a GenAI training set may be important to laying, or challenging, an evidentiary foundation to a proffer of A.I. generated evidence at trial or on motions.  For example, if a training set is biased, the output may be biased.  See A Review of Sedona’s “Artificial Intelligence (AI) and the Practice of Law” by The Hon. Xavier Rodriguez (Sep. 27, 2023)(Sedona suggests: “AI evidence may require that the offering party disclose any training data used by the AI platform to generate the exhibit.”)(emphasis added).

THE CALIFORNIA TRAINING DATA TRANSPARENCY ACT

The X.AI court described the California statute:

The documentation must include “[a] high-level summary of the datasets used in the development of the generative artificial intelligence system or service” addressing, but not limited to, twelve enumerated topics…. Those topics include:

(1) The sources or owners of the datasets.

(2) A description of how the datasets further the intended purpose of the artificial intelligence system or service.

(3) The number of data points included in the datasets, which may be in general ranges, and with estimated figures for dynamic datasets.

(4) A description of the types of data points within the datasets….

(5) Whether the datasets include any data protected by copyright, trademark, or patent, or whether the datasets are entirely in the public domain.

(6) Whether the datasets were purchased or licensed by the developer.

(7) Whether the datasets include personal information ….

(8) Whether the datasets include aggregate consumer information ….

(9) Whether there was any cleaning, processing, or other modification to the datasets by the developer, including the intended purpose of those efforts in relation to the artificial intelligence system or service.

(10) The time period during which the data in the datasets were collected, including a notice if the data collection is ongoing.

(11) The dates the datasets were first used during the development of the artificial intelligence system or service.

(12) Whether the generative artificial intelligence system or service used or continuously uses synthetic data generation in its development….

Id. at *1-2.  However:

The statute exempts three types of models from disclosures: (1) a generative artificial intelligence system or service whose sole purpose is to help ensure security and integrity; (2) a generative artificial intelligence system or service whose sole purpose is the operation of aircraft in the national airspace; and (3) a generative artificial intelligence system or service developed for national security, military, or defense purposes that is made available only to a federal entity.

Id. at *2.

X.AI’s CLAIMS

X.AI is an entity subject to the statute.  It presented three arguments against the statute: “(1) that it violates the Takings Clause of the Fifth Amendment; (2) that it violates the First Amendment; and (3) that it is unconstitutionally vague.”

Presumably as a precaution, X.AI published a “high-level, limited disclosure that does not reveal its trade secrets.”  Id. at *2.  In is Complaint, however, it alleged a concern that the State Attorney General would assert non-compliance and seek to enforce the law.

Plaintiff alleges that several aspects of the datasets used to train AI models—including their contents, origins, size, and cleaning methods—are valuable and non-public…. Plaintiff alleges that “information about the datasets and processes AI developers use to train their AI models is a closely protected trade secret.”

Id. at *2. The X.AI court described and applied the legal standard governing motions for preliminary injunction.

THE COURT’S DECISIONS

The Attorney General of California was the defendant. I will, for ease of reference, even if not with fidelity to U.S. Const., Amend. 11, refer to the defendant as the “State.”

X.AI Has “Standing” to Challenge the Statute

The State contended that X.AI lacked Art. III “standing” to make the claim.  Oversimplifying, the State argued that X.AI had “engaged in some degree of compliance” and lacked injury in fact. The court rejected that defense. Id. at *3.

The Statute Did Not Violate the Takings Clause Because the Complaint was Generalized

The X.AI court next analyzed the “Takings Clause” argument.

Before the Court can evaluate whether Plaintiff has likely allegedly a successful Takings Clause claim, the Court must determine the likelihood of Plaintiff proving that the sources, sizes, and cleaning methods of its datasets qualify as trade secrets…. Under California law, “the test for a trade secret is whether the matter sought to be protected is information (1) that is valuable because it is unknown to others and (2) that the owner has attempted to keep secret.” [emphasis added].

However, the X.AI court found that X.AI’s supporting allegations were simply general statements. It wrote: “ Plaintiff’s Complaint trades in frequent abstraction and hypotheticals, rather than pleading specifics about Plaintiff’s practices.”  Id. at *4.  The court explained that:

When it comes to specificity, Plaintiff alleges that “[a]s part of its development process, xAI generally used the methodology outlined above.” … It offers that “xAI’s engineers invested substantial amounts of time and energy in acquiring datasets from various sources across the Internet to develop and eventually train the AI models that it has produced.” … Plaintiff also alleges that “[t]he amount of data that xAI uses is also valuable precisely because it is unknown to others” and that “xAI’s processes for cleaning, modifying, and refining the datasets it has obtained are economically valuable information too.”

Id.

Further, X.AI acknowledged that there is data overlap among many AI companies.  Instead, it asserted that the differences give a competitive edge.  The court wrote: “The problem is that Plaintiff has not alleged that it actually uses datasets that are unique, that it has meaningfully larger or smaller datasets than competitors, or that it cleans its datasets in unique ways. Plaintiff’s resort to generalizations and hypotheticals about the AI model development industry make it difficult for the Court to find that Plaintiff has carried the heavy burden of showing a likelihood of success in proving that trade secrets are at play here.”  Id. at *4.

The X.AI court acknowledged that, hypothetically, datasets could be trade secrets; however, here, X.AI’s allegations were only an “abstract pleading….” Id. at *5.  It held that: “Plaintiff has failed at this stage to sufficiently allege that trade secrets are implicated. As such, the Court finds that, as a threshold matter, Plaintiff is not likely to succeed on the merits of its Takings Clause claim based on the Complaint as pled.”

The Statute Did Not Violate the First Amendment

X.AI asserted that the statute compelled speech based on content and viewpoint.  “Specifically, Plaintiff alleges that [the California statute] is content-based because it requires Plaintiff to disclose specific content about its AI models, and it is viewpoint-based because it exempts developers of AI models related to network security, aircraft operations, and national security from its requirements.”  Id. at *5.

The X.AI court found that the statute is a “content-based speech regulation….”  Id. at *6.  However, it also found it to be “commercial speech.” Id. at *8.  It wrote that: “No part of the statute indicates any plan to regulate or censor models based on the datasets with which they are developed and trained.”  Id. at *7.

After a lengthy analysis, the X.AI court concluded:

Ultimately, Plaintiff has demonstrated a distinct possibility of prevailing on the merits…. But it had not demonstrated a likelihood of success on the merits. The information before the Court is insufficient to come to such a conclusion at this stage. Plaintiff therefore does not satisfy this threshold inquiry for a preliminary injunction on its First Amendment claim.

Id. at *8 (emphasis in original).

The California Statute is Not Void for Vagueness

The X.AI court wrote that the mandate of publishing “a high level summary: of the training datasets is not a picture of clarity standing alone….” Id. at *9.  However, that mandate is followed “by a precise list of the information to be included.” Id.

X.AI challenged terms such as “dataset” and “data point” as vague. It also argued that the list was non-exhaustive and therefore vague. The court disagreed.

Here, there is a list of information required akin to a set of factors—it is simply non-exhaustive. Given that a statute entirely lacking a list of factors can still be sufficiently clear, it is likely that a non-exhaustive list is enough.

Id. at *9.

The court viewed other vagueness challenges as “similarly insufficiently persuasive at this stage, absent a better-developed record, to find a likelihood of success on the merits…. Ultimately, the record at this stage is insufficiently developed for the Court to determine that Plaintiff is likely to succeed on the merits of its vagueness challenge.”  Id.

However, the X.AI court left the door open: “Evidence may arise during the course of litigation that eventually requires a different determination. But the pleadings and record as they stand are not enough at this time.”  Id.

COMMENT

Knowledge of how an A.I. tool was trained may be important in offering, or challenging, evidence at trial.  Admissibility may turn, at least in part, on knowing the data on which the AI was trained.  See M. Grossman & Hon. P. Grimm, “Judicial Approaches to Acknowledged and Unacknowledged AI-Generated Evidence,” 26 Col. Sci. & Tech. L. Rev. 110, 152 (2025).

ABA Formal Opinion 512 (“Generative Artificial Intelligence Tools” 2024) states: “The large language models underlying GAI tools use complex algorithms to create fluent text, yet GAI tools are only as good as their data and related infrastructure. If the quality, breadth, and sources of the underlying data on which a GAI tool is trained are limited or outdated or reflect biased content, the tool might produce unreliable, incomplete, or discriminatory results.” [emphasis added].

GenAI responds to prompts “based on patterns and structures learned from the data used to train the AI model.” Maryland State Bar Ass’n., “An Overview of Ethical Considerations for Attorney Use of Generative Artificial Intelligence Technologies” (undated), 3 (emphasis added).

The “quality of their training” may impact the limitations and risks presented by GenAI tools.  The Sedona Conference, The Sedona Canada Primer on Artificial Intelligence and the Practice of Law, 26 SEDONA CONF. J. 103,128 (forthcoming 2025), 128. A comprehensive and representative dataset is needed to train AI systems. Id. at146-47.  Inadequate training may lead to bias. Id. at 149-50.

Disclosure of training data may be an important predicate to admissibility. American Assoc. for the Advancement of Science, “Artificial Intelligence and the Courts” (2022), 12.

Facial recognition technology is a form of artificial intelligence.  In criminal cases, Maryland’s facial recognition technology statute requires a “description and the names of the databases searched….”  Md. Code Ann., Crim. Proc. Art. §2-504.

The ABA Task Force on Law and Artificial Intelligence Year 2 Report (2025) states: “Similarly, in healthcare, AI-trained devices may produce biased results if training datasets lack diversity, potentially leading to misdiagnoses.”

POSTSCRIPT

In Maryland, House Bill 823 “died” in committee.  It was titled “Generative Artificial Intelligence – Training Data Transparency.”  The official synopsis was: “Requiring a developer of a generative artificial intelligence system, on or before January 1, 2026, and before the developer releases or substantially modifies a certain generative artificial intelligence system, to publish on the developer’s website documentation detailing the data used to train the generative artificial intelligence system.”  For more information on legislative efforts, please see Bill to Create A.I. Evidence Clinic Pilot Program Was Vetoed in MD (Sep. 15, 2025).

One advantage of using Special Masters like Phil is speed.  Phil was appointed by the court on November 26, 2025.  Materials were submitted to him between December 11^th and the 18^th.  A two-hour hearing was held on December 19^th. The decision issued on December 23^rd.

• For more information on Phil, see Congratulations to Phil Favro on the Opening Favro Law PLLC (Jun. 16, 2025).
• For more information on special masters generally, please see Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024); Court’s Use of a Special Master to Assist EEOC in Obtaining Discovery from Defendant (Jul. 30, 2025); Court Appointed a Special Master to Negotiate ESI Protocol (Dec. 12, 2024); No More “Masters”? (Feb. 16, 2024); Mediation of Discovery Disputes by Court’s Law Clerk? (Jul. 9, 2024).

One issue in Pso-Rite turned on the form of production of text messages. Phil wrote: “The production format was PDF, with screenshots of the responsive text messages produced on approximately 80 pages of documents. The text messages did not include any metadata. Nor did they reflect sender, recipient, or date and time stamp information.”  Id. at *2. He determined:

The Special Master finds that Pso-Rite’s December 17 production of text messages is not “reasonably usable” pursuant to Federal Rule of Civil Procedure (“Rule”) 34(b)(2)(E)(ii). Producing screenshots of text messages without sender, recipient, or date and time stamp information, or related metadata, is an impermissible “document dump.”

Id. He also ordered “Pso-Rite to make forensic images of the phones belonging to [custodians] Mollohan and Lee that have discoverable text messages—i.e., electronic communications that are relevant to the claims or defenses and proportional to the needs of the case—sent or received during the relevant time period on mobile communications applications. Mobile communications applications should be construed broadly and include communications from iMessage, WhatsApp, Telegram, Facebook, Facebook Messenger, Instagram, Slack, Google Chat, and any other messaging application that Mollohan and Lee used to communicate regarding matters that are discoverable in this litigation.”  Id.

Further, the order stated:

To the extent not already completed, counsel for Pso-Rite shall conduct custodian interviews of Mollohan and Lee to determine the precise nature of the mobile communications applications Mollohan and Lee have used to discuss matters that are discoverable in this litigation. As part of the custodian interview, counsel for Pso-Rite shall inquire regarding the custodians’ possible use of ephemeral (disappearing) messaging features associated with WhatsApp and Telegram (and other messaging applications) and the automated deletion feature for iMessage. In addition, counsel for Pso-Rite should inquire as to the custodians’ practices with respect to deleting text messages, whether the custodians actually read the legal hold notice issued by their former counsel in this case, what actions the custodians took to preserve discoverable text messages, and when they began doing so.

Id. at *3.  When that was completed:

Pso-Rite must then collect those messages, search the messages for discoverable communications, and produce those communications forthwith. Pso-Rite and Thrival are encouraged to continue their efforts to cooperatively develop search terms that can be run against the collection of text messages to identify discoverable communications. Nevertheless, Pso-Rite and its counsel have an independent obligation to look for, identify, and produce responsive text messages and they should be certain to undertake good faith, reasonable efforts to discharge that obligation. Pso-Rite need not manually review all of Mollohan’s and Lee’s text messages to identify responsive information. Nevertheless, Pso-Rite must do more than just use search terms to locate relevant text messages since search terms may not hit on responsive information given that texts are replete with idioms, slang, jargon, and other contextual language. Pso-Rite should also validate the production to reasonably ensure that it includes relevant and proportional information.

Id. (emphasis added).  This holding comports with the principle that a litigant may have a duty to correct an opponent’s search terms. See Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).

Further, Phil addressed the context problem – what I have called the “what is a document” issue. He wrote: “Finally, the Special Master orders the parties to meet and confer regarding the production of contextual messages surrounding relevant text message strings. While certain courts have followed the procedure articulated in Lubrizol v. Corp. v. Int’l Bus. Machines Corp., the Special Master believes the parties should reach an agreement on this issue. Any procedure on which the parties agree will apply both prospectively and retrospectively to all text message productions the parties have and shall make. The parties shall report back to the Special Master by January 12, 2026 on the nature of the agreement they have reached regarding the production of contextual messages.”  Id. at *3.

This is an important issue.  See What is a “Document?”: Interior Email Omitted from Email Chain – Sanctions Follow for Lack of Candor to Court (Sep. 11, 2025); ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (May 14, 2025); What is a Document? (Part III) (Apr. 4, 2022); What is a Document? (Part II) (Aug. 28, 2021);  What is a “Document?” (Aug. 17, 2021);   Sedona Conference Commentary on Discovery of Collaboration Platforms – What is a Document? (Apr. 10, 2025); What Hath Noom Wrought? (Apr. 25, 2023).

It is important to remember that:

• Fed.R.Civ.P. 34(b)(1)(C) authorizes the requesting party to “specify the form or forms in which electronically stored information is to be produced.”
• Fed.R.Civ.P. 34(b)(2)(D) states that: “The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form–or if no form was specified in the request–the party must state the form or forms it intends to use.”
• Fed.R.Civ.P. 34(b)(2)(E)(ii) states that: “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms….”

Phil’s decision also addressed database discovery, email accounts of departed employees, advice of counsel documents and privilege logging, and directed disclosure of “a written description of its efforts to search for, identify, and produce discoverable information from its Google Workspace. The description shall offer details regarding Pso-Rite’s efforts to comply with its Rule 26(g) duty of reasonable inquiry.”

In Leon, the plaintiffs filed a “Motion to Compel re Discovery Disputes on ESI Protocol.” While both parties agreed that an ESI Protocol was necessary, the parties filed a stipulation describing seven issues on which they could not agree. The case was a putative nationwide class action alleging an undisclosed allegedly defective sliding door sensor.

This blog discusses six of the seven ESI Protocol issues resolved in Leon:

• Issue 1: Production of Known Responsive Documents Outside of the Search Terms
• Issue 3: Keyword Construction and Relevant Technology
• Issue 4: Hit Reports
• Issue 5: Validation of Search Methodology
• Issue 6: Family-Inclusive Production
• Issue 7: Relevancy Redactions

Initially, however, the Leon court drew a distinction–one that I have also suggested–between an “ESI Protocol” and a “Discovery Plan.” Id. at *3 (stating that a Rule 26(f)(3)(C) discovery plan must include “any issues about disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced”); An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025); “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024); Parties Ordered to Cooperate in Good Faith and Develop a “Discovery Plan” (May 25, 2024).

Issue 1: Production of Known Responsive Documents Outside of the Search Terms

Here, plaintiffs said (in my less elegant words), “if you know of a responsive document that the search terms do not hit, you need to produce it even though the terms did not retrieve it.” Defendant responded that this suggestion improperly added terms to the ESI Protocol.

The court quickly overruled defendant’s objection, writing: “But Defendant has not articulated any burden or prejudice from having this provision in the Protocol. And this language reinforces the purpose of an ESI Protocol—ensuring that all responsive and relevant ESI is produced without Court intervention.”

For more on the question of “if a litigant has actual knowledge that an opponent’s proposed search terms will not ‘hit’ on responsive, proportional ESI, does the litigant have a duty to tell the opponent,” see Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).  I suggest, and the Leon court held, that the answer is “yes.” The theory is that an ESI Protocol and the litigant’s obligations under the rules of procedure work in tandem. One does not replace the other.

Often, the converse issue is present, i.e., does a party have to produce every unprivileged document on which a search term hits, regardless of responsiveness?  The answer is generally “no.” Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024); How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023); 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024); cf. Agreement in ESI Protocol to Produce All “Hits,” Without Review (Mar. 4, 2025).

Issue 3: Keyword Construction and Relevant Technology

Issue 3(A): Use of “Or” Connectors

Plaintiff contended that use of an “OR” connector obscured the search terms’ individual performance.

They argue that if Defendant is allowed to compound “multiple ‘OR’ terms into a single string …—for example, ‘defect AND (door OR Honda)’—it becomes impossible to tell whether the hits are being driven by ‘door,’ ‘Honda,’ or both.”

Defendant objected and asserted there was “no good reason to limit the types of search terms the parties can agree to in the ESI protocol,” but admitted there was  only a “marginal” increase in burden.  Its objection was overruled.

Issue 3(B): Disclosure of Internal Terminology

The court described the dispute:

Plaintiffs request that Defendant identify the internal acronyms, abbreviations, nicknames, and project code names it uses to refer to the subject matter of this litigation…. They argue that their language “ensures that keyword searches—one of the agreed proxies for relevance—are run in a transparent, reliable, and complete manner.” ….

Defendant agrees that its counsel will need to consult with Defendant’s employees and cooperate with Plaintiffs’ counsel to come up with appropriate keywords to use when searching for responsive documents…. But Defendant asserts requiring its counsel “to prepare such a list would violate the work product doctrine because it would disclose … counsel’s mental impressions and determinations of what items are important to the case.”

The Leon court agreed with defendant: “Cooperation among counsel to determine keywords is materially different than requiring Defendant’s counsel to unilaterally identify keywords.” Defendant’s objection was granted.

For more information, see Golden Oldie #6 – Four Historical Search Decisions (Apr. 21, 2025). In Wm. A. Gross Construction Assoc., Inc. v. Amer. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009), the Hon. Andrew Peck (ret.)  issued a wake-up call to the Bar and stated that lawyers cannot design searches by the seat of their pants.  Judge Peck pointed to the need for quality control to test for false negatives and false positives.  His Honor also pointed to the need to speak with the authors of the ESI to design search terms.

Issue 4: Hit Reports

“Plaintiffs’ proposed language requires that when a party objects to a proposed search term as overbroad or disproportionate, it must produce a basic ‘hit report’ showing how many documents that term retrieves.”

Defendant responded that it need only provide hit reports on request. It argued: “That is a reasonable procedure that avoids the expense of sweeping efforts to gather, import and store data for every single search term.”

The court wrote that Defendant failed to quantify the cost of having to run a hit report.  In my experience, the cost is nominal and perhaps that explains the failure to quantify.

The court found that failure to be fatal, writing: “Thus, any objection to a proposed search term as overbroad or disproportionate must be accompanied by a hit report so that the other party—and the Court—can assess the burden. Making such an objection without the hit report invites disputes and Court intervention, which an ESI Protocol is designed to avoid.” Defendant’s objection was overruled.

For more information on “hit reports,” see Does Every “Hit” on a “Hit Report” Have to be Produced? (Nov. 13, 2024); Keyword Hits + Overbroad Terms ≠ Duty to Produce (Sep. 9, 2024); 8 Lessons Learned – Part II – “Hit” Report Provision of ESI Protocol (May 7, 2024); How to Avoid Contentious “Hit Report” Problems – Part III (Nov. 15, 2023).

Issue 5: Validation of Search Methodology

Plaintiff demanded that quality control measures be applied to the result of keyword searches.  Specifically, it demanded a random sampling of the null set. In my experience, that process is well-accepted – in fact, it is generally required as a matter of prudence.

Defendant agreed that “quality control measures, including random sampling of null sets, should [ ] be used to evaluate keyword searches.”  However, it made what I view as a curious objection in an age of cooperation and transparency:

But it “objects to Plaintiff’s attempt to take over the process.” … At the hearing, counsel argued that requiring Defendant to turn over nonprivileged null set documents violated Rule 26 because it necessarily includes documents nonresponsive to the search terms.

The court overruled that objection, writing: “But the point of the null set evaluation is to ensure that the search terms are capturing all responsive, relevant information. And Defendant does not quantify the burden of producing a small random sample of the null set documents to Plaintiffs.”  As an aside, I suggest that a null set evaluation need not require production of nonresponsive documents – disclosure of metrics may suffice.

Validation protocols are necessary.  Court Resolves Disputes Over Number of Custodians and Validation Protocol (Aug. 6, 2024); see generally Historical ESI Highlights – Part VI – Victor Stanley and Keyword Searching (May 29, 2022).  Cases citing the need for quality control are discussed in Golden Oldie #6 – Four Historical Search Decisions (Apr. 21, 2025).

Issue 6: Family-Inclusive Production

Plaintiff suggested that entire “families” must be produced together, subject to withholding of privileged information.  “Defendant objects that the [proposed ESI Protocol] language would require production of irrelevant documents.”

“While the Court appreciates that the case law is split on this issue, the Court finds that the efficient and fair approach is to treat emails and their attachments as a single document.”  That will allow “Plaintiffs—and the Court when appropriate—to review the document family as it was created and maintained.”  Further, breaking up families would, it wrote, be an impermissible “relevance redaction.”

The parent-child question may also have impacts on privilege decisions.  See “Attachments to Attorney-Client Communications May Be Withheld as Privileged, Without an Independent Basis for Privilege,” But…. (Aug. 8, 2024).

I have written several blogs on the question of “what is a document” in the digital age. E.g., What is a “Document?”: Interior Email Omitted from Email Chain – Sanctions Follow for Lack of Candor to Court (Sep. 11, 2025). When it comes to ESI, that is a good question to ask.  See:

• Sedona Conference Commentary on Discovery of Collaboration Platforms – What is a Document? – E-Discovery LLC;
• Uber Technologies – Another Hyperlink Decision – E-Discovery LLC;
• “Modern Attachments” or “Pointers”- What is a Document? (Part IV) – E-Discovery LLC;
• What is a Document? (Part III) – E-Discovery LLC;
• What is a Document? (Part II) – E-Discovery LLC.

The parent-child issue in Leon does not appear to have been one of “modern attachments,” or hyperlinks. See, e.g., Uber Technologies – Another Hyperlink Decision (Mar. 6, 2025); 8 Lessons Learned – Part I – The “Humpty Dumpty” Clause of ESI Protocol (May 6, 2024); More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” (Nov. 13, 2023); ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue” (Apr. 29, 2024); “Modern Attachments,” ESI Protocols, & Second Chances (Jun. 8, 2023);  What Hath Noom Wrought? (Apr. 25, 2023);  “Modern Attachments” or “Pointers”- What is a Document? (Part IV) (Aug. 12, 2022).

Issue 7: Relevancy Redactions

Defendant sought the right to redact parts of documents that contain irrelevant sensitive business information.  The Leon court wrote: “But courts in this Circuit typically conclude that the unilateral redaction of documents on the ground that the producing party deems the information irrelevant is generally improper.” It explained the reasons for that rule. Id. at *6.

I have written several blogs on relevance redactions.  E.g., ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy; (May 14, 2025); Relevance Redactions Prohibited – Again (May 17, 2024); 8 Lessons Learned – Part III – Redaction Provision of ESI Protocol (May 8, 2024). They are generally impermissible.

Leon addresses a number of important ESI Protocol issues.

This blog is an update of Half-Baked Motion to Compel Was Not Prompt, Not Ripe, Not Complete, and Not Likely to Succeed – E-Discovery LLC (Aug. 22, 2025)(“Golat I”).

In Golat I, the court denied without prejudice plaintiff’s motion to compel production of documents on defendants’ privilege log.  Plaintiff’s counsel had stated that he produced “a true and correct copy of an email thread” with defense counsel about the timing of a discovery dispute.

That statement was incorrect. In the court’s words: “But the copy counsel attached was not true and correct because it omitted an email from the thread. The omitted email showed ‘the parties were communicating about the privilege log and had reached an understanding on approach and timeframe.’” [emphasis added].  In Golat I, the court entered a show cause order demanding an explanation.

In Golat II, after review of plaintiff’s response, the court permitted defendants to request recovery of their attorneys’ fees in opposing plaintiff’s earlier motion.

The court wrote:

Plaintiff’s counsel reports that he omitted the email from the thread, not through any neglect, but because he thought it was “cumulative and not materially different from the communications that were provided.” … Counsel further explains that he did not think the email was “material to the narrative” because he did not receive a reply from defendants’ counsel.

The Golat II court disagreed: “To be clear, the omitted email was not the final email in the chain, nor the first.”  In my words, counsel produced a peanut-butter-and-jelly sandwich, without the peanut butter or jelly.

The court described what was missing. Defendants had made a proposal by email.  In the omitted email, plaintiff’s counsel responded, but did not raise any concerns with defendants’ proposed timeline or plan.  The court wrote:

The omitted email was not “cumulative.” Rather, the July 25 afternoon email exchange shows that defendants’ counsel was attempting to resolve the dispute and plaintiff’s counsel had no objection to the proposal, undercutting any argument that defendants’ counsel had outright refused to meet and confer…. It appears plaintiff’s counsel selected the emails that bolstered the motion to compel, while leaving out the less-favorable portion. This is problematic, and plaintiff’s counsel’s protests to the contrary are unpersuasive. [emphasis added].

The Golat II court wrote that counsel have a duty of candor to the court:

In the context of discovery disputes, this means that counsel must provide the court with a complete and accurate recounting of the parties’ correspondence relating to the dispute. It is the court’s role, not counsel’s role, to decide what portions of the correspondence matter. Going forward, plaintiff’s counsel must take better care to adhere to these points. [emphasis added].

The court wrote:

The loser of a motion to compel under Federal Rule of Civil Procedure 37(a) must presumptively pay the other side’s expenses, including attorney fees, absent a showing of substantial justification. …. This fee-shifting presumption encourages parties to work hard on resolving discovery disputes amongst themselves and to reserve motion practice for only those disputes that are ripe for the court’s consideration.

The Golat II court set a briefing schedule for a request by defendants for reasonable expenses incurred in opposing the motion to compel.

Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”  Usually, it was clear where a letter, memo, or contract began and ended.  But ESI is much different than paper and recent cases bring that issue to the forefront. What is a “Document?” – E-Discovery LLC

In Golat II, the missing email was, in my words, part of the “document.” When it comes to ESI, a good question to ask is “What is a document?”  See:

• Sedona Conference Commentary on Discovery of Collaboration Platforms – What is a Document? – E-Discovery LLC;
• Uber Technologies – Another Hyperlink Decision – E-Discovery LLC;
• “Modern Attachments” or “Pointers”- What is a Document? (Part IV) – E-Discovery LLC;
• What is a Document? (Part III) – E-Discovery LLC;
• What is a Document? (Part II) – E-Discovery LLC.

This blog was initially posted on  Electronic Discovery Reference Model.

UPDATE: Golat v. Wisc. State Court System, 2025 WL 3063632 (W.D. Wisc. Nov. 3, 2025).

There is a substantial and growing body of scholarly and regulatory writing applicable to the use of digitally-obtained geographical information in other contexts, including civil litigation, information governance, and regulation.  It would take multiple books to reach even the tip of the scholarly iceberg.  This blog does not seek to climb that mountain.  Instead, like a first-year law school class, it is intended as issue-flagging.

GEOFENCING IS BEGINNING TO APPEAR IN CIVIL LITIGATION

Geofencing is beginning to appear in civil litigation.  In KalshiEX, LLC v. Hendrick, 2025 WL 1073495, at *1 (D. Nev. Apr. 9, 2025), a plaintiff moved to enjoin State agencies “from pursuing civil or criminal enforcement against Kalshi for offering event contracts in Nevada.”  The State had sent Kalshi a cease-and-desist letter alleging that Kalshi’s actions were unlawful in Nevada.

Injunctive relief was granted for a number of reasons; however, in pertinent part: “Kalshi presents credible evidence that even if it could implement geofencing at great expense, it could not do so immediately as the defendants demanded. And, as discussed at the injunction hearing, there are questions about whether Kalshi could recover monetary damages against the defendants in either state or federal court and, even if it could, whether those damages would be capped such that Kalshi could not meaningfully be compensated for the millions of dollars it asserts it would have to spend to geofence out Nevada market participants.” Id. at *7 (emphasis added).

USE OF GEOTARGETTING POTENTIAL JURORS

One of the most fascinating uses of geofencing in civil litigation was an attempt to reach potential jurors by targeting advertisements around the courthouse in one of several hundred “Roundup” cases. Pilliod v. Vionsanto Co., 2019 Cal. Super. LEXIS 23599, at *7 (Alameda Cty. Super. Ct. Apr. 4, 2019)(unpublished).

Plaintiffs alleged personal injury caused by Monsanto’s Roundup product. The case was set for a jury trial “against the backdrop of substantial press coverage outside the courtroom of similar cases….”

Plaintiffs moved to preclude Monsanto from publishing advertisements about product-related issues.  Among the various types of advertising, “at the hearing on 4/4/19, counsel for plaintiff asserted that Monsanto was using geofencing or geomarketing to target advertisements about the safety of Roundup to cellphones and other mobile electronic devices that in the area of the courthouse. Plaintiff’s assert that  this targeted advertising on a central issue in this case is jury tampering.” Id. at *6-7.  Plaintiffs’ counsel asserted, without evidence, that “Monsanto is geomarketing to the courthouse.”

The Pilliod court wrote:

Assuming arguable misconduct, there are practical concerns. In contrast to persons in a courtroom with placards or buttons, the court cannot readily observe geomarketing. The court could, but will not, order Plaintiff’s and Monsanto to cease and desist from geomarketing the courthouse and to submit declarations of compliance. Even if issued, any such order precluding geomarketing would not preclude general marketing in Alameda County and the Bay Area, and the jurors might be exposed to such marketing at home and on their ways to and from the courthouse. The court is not persuaded that the alleged geomarketing is materially different from carrying signs outside a courthouse or carrying placards or wearing  buttons inside a courtroom or that it requires a different judicial response.

Id. at *7-8 (emphasis added). With the exception of Ms. Neff’s article which brought this decision to my attention, Shepard’s does not report any subsequent citation of this decision.

GEOFENCING, GEOTARGETING, AND GEO-BLOCKING

IN SOME CIVIL CONTEXTS

One recent article defines and discusses the role of geofencing, geotargeting, and geo-blocking in some civil contexts.  S. Neff, “Thinking Inside the Box: Geo-Fencing Technology Litigation and Lessons for the Consumer Financial Services Industry,” 78 Consumer Finance Law Quarterly Report 1 (2025).[1]

Oversimplified, geofencing occurs when law enforcement knows where and when a crime was committed and law enforcement serves a multi-step geofence search warrant to find out what cell phones were in the “geofenced” area at the relevant time, thus locating suspects.  Uses in civil litigation can be hypothesized.  X claims that A harassed X at 4 p.m., in the employer’s office building.  Can geolocation data show that A – or, at least, A’s cell phone – was, or was not, at that location at that time?[2]

Geotargeting identifies devices currently in an area so that targeted marketing can be sent to those devices. A shopper in Store Y may receive a text about a special sale item located in Aisle 9 of that store while the customer is still shopping.

Geo-blocking is used to prevent access.  For example, a seller that does not want to purposely avail itself of a particular forum may geo-block its website or advertising from that forum. And, “[i]n Ukraine, SpaceX used location data to create a geofence around Crimea so that the Ukrainian military could not access Starlink in that location because Musk did not want Starlink to be used offensively by Ukraine to gain territory that Russia controlled.”  Gavin Small, 20 Duke J. Const. L. & Pub. Pol’y Sidebar 107, 113 (2025).

Geofencing may be more widespread than most of us recognize.  In “Thinking Inside the Box,” Ms. Neff wrote:

Many financial service companies have adopted the use of geo-fencing and geo-location technologies. These products and services take advantage of these emerging technologies to improve the services provided and contour the products offered to consumers. While these technologies have much to offer, geo-fencing and geo-location are more frequently becoming the subject (or at least an aspect) of litigation. This Article explores the ways that geo-fencing and geo-location have found a presence in the American courtroom and the lessons this development has for consumer financial service companies. [emphasis added].

Some commercial uses of geofencing are:

For example, consider a customer who enters a grocery store and crosses into an invisible geo-fence. While in the store, he may receive a text message with a linked coupon or a message about weekly specials or may see other focused advertising on social media. This is a prime example of an advertising geo-fence in action–providing targeted information and opportunities to a consumer as he enters the designated geo-fence area. In addition to advertising, geo-fences serve a variety of purposes, such as gathering data on location behavior, recording employee attendance, and improving resource management based on how locations are frequented. Importantly, geo-fences are increasingly used to ensure compliance with regulations. For example, Geo-fences can verify the location of a person placing a wager on a state-regulated wagering platform, ensuring that the user is not located in a county or parish that has expressly prohibiting such gaming. Similarly, geo-fences are used to limit the territory of internet-streamed radio broadcasts, helping unlicensed stations stay within the 150-mile exemption of the U.S. Copyright Act for streaming broadcasts online. Geo-fences also play a role in security and safety. States have created grant programs to use geo-fencing to protect schools from security threats. Additionally, geo-fences are used to guide commercial drivers away from restricted areas during political events or to track commercial boats for purposes of reducing pollution.

Geo-targeting is a similar, but different concept: “While geo-fencing is triggered by a device moving into or out of a designated geo-fence, geotargeting focuses on the current location of a device, regardless of movement…. In the context of digital environments, such as internet browsers and online services, geotargeting can be used to tailor content and advertisements to a user’s location to enhance relevance and effectiveness.  Ms. Neff wrote:

For example, when a user in Chicago opens the browser on her cell phone and searches for “Chinese restaurant,” the browser geotargets the user’s location and assumes she is searching for Chinese restaurants in Chicago, which is reflected [in] the search results. Similarly, the Federal Communications Commission authorized the Wireless Emergency Alerts System to use geotargeting to send messages to all devices within a specified area to receive emergency alerts. This is how a user receives AMBER Alerts or emergency shelter alters targeted to the user’s current location.

Ms. Neff asks: “What lessons do criminal cases about geo-fencing warrants have for consumer financial services companies?”  For example, she points out that any company using geofencing as a marketing or other commercial tool may find itself served with a search warrant for the data.  That is an information governance consideration.  Does management wish to take that risk? [3]

Geo-blocking, Ms. Neff wrote, is “using location technology to prevent access to websites or information” and she opines that it and geofencing are “some of the latest battlegrounds in personal jurisdiction fights, especially in cases involving e-commerce or internet jurisdiction.” Personal jurisdiction may be demonstrated by action purposely aimed at a forum state, such as seeking to contract or provide goods in that forum.  Ms. Neff asks:

But what if a defendant uses geo-fencing or geo-blocking technology to intentionally avoid engaging with or doing business in the subject forum? The general sentiment is that the extent of a defendant’s efforts to utilize location technology to avoid transacting in a certain jurisdiction tend to demonstrate that a defendant did not purposefully avail itself of the privilege of conducting business in that for[u]m. Efforts to block contacts with a forum– even if not foolproof–demonstrate a defendant’s effort to avoid minimum contacts within a forum, and that the defendant has a due process interest in not being hailed into court in that forum. “To be sure, the proposition that a website’s affirmative geoblocking efforts should weigh against the exercise of personal jurisdiction is unobjectionable.” [emphasis added; citation omitted].

However, Ms. Neff asserts that “the reverse is not necessarily true,” and a failure to geoblock is not a purposeful availment of the forum.[4]

The Duke Journal article notes that several states bar geofencing around physical and mental health care facilities.  Geofencing can be used to “promote targeted products and services….”  As one example, the Neff article states that, absent a legal prohibition: “Digital advertising firms can set up geofences around health care entities, and once a person crosses that invisible barrier, the person is bombarded with text messages and advertisements, urging the person not to seek reproductive or gender-affirming care.” [citation omitted].  While some states have barred the process, Ms. Neff wrote that others have not.

After discussing Pilliod v. Vionsanto Co., 2019 Cal. Super. LEXIS 23599 (Alameda Cty. Super. Ct. Apr. 4, 2019)(unpublished), Ms. Neff concludes:

For consumer finance companies engaging in high stakes litigation, geofencing targeted messages about a company’s commitment to transparency and fair practices could be a powerful tool to augment the conversation in advance of a jury trial. That said, the more narrowly the geographic area is targeted, the less likely it will survive scrutiny.

As a matter of information governance, if nothing else, entities planning to use geofencing, geotargeting, or geo-blocking should make an informed analysis.

A SAMPLING OF GEOFENCING AND ITS COUSINS

IN CIVIL CONTEXTS

As noted at the outset, this topic could fill books and is the subject of numerous law review and journal articles.  A few samples follow:

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Lawyer Advertising

“’Weird, this is the fourth ad I have gotten on my phone from a personal injury firm since I’ve been here. It’s like this thing can read my mind …,’ Tanner thinks as he browses his phone while he sits in the University Hospital waiting room. He is waiting to see his elderly father, Cole, who just had a fall at the supermarket.”  Trevor Warren, “En Garde!: Geofencing and the Pressing Need to Update ABA Model Rule 7.3,” 63 U. Louisville L. Rev. 187, 187 (2024).  “This technology is already being used by retail giants such as Target.”  Id.  The article states: “With the realization of a growing need for regulation of attorneys using geofencing to solicit their legal services, and in light of a silent ABA, some states have issued their own advisory opinions.” Id. at 204.

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Privacy and Health Care

“In September 2017, the Attorney General of Massachusetts settled its suit against Massachusetts-based advertising company, Copley Advertising, LLC, for violating state consumer protection laws. Copley had created a ‘geofence’ around Massachusetts reproductive health facilities, tracking consumers’ physical location and disclosing that location to third-party advertisers.”  Lianne Foley, “Targeted Advertising in the Healthcare Industry: Predicted Privacy Concerns,” 27 Annals Health L. Advance Directive 62, 62 (2017).  “[Copley Advertising] can set up a mobile geofence around any area.”  Id. at 65 (emphasis added); see Hana Ferrero, “Identifiable to Whom? Clarifying Biometric Privacy Rights in Illinois and Beyond,” 92 U. Chi. L. Rev. 1027, 1040, n. 79 (2025)(“Prohibiting the use of geofences helps ensure patients’ privacy regarding visits to healthcare facilities (e.g., abortion clinics, substance abuse treatment, and mental health clinics) and their underlying medical conditions.”).

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Reproductive Rights Privacy & Political Campaigns

“Targeted advertising is a critical, hotly contested policy issue for at least four reasons.”  Derek E. Bambauer, “Target(Ed) Advertising,” 58 U.C. Davis L. Rev. 1429, 1435, 1509 (2025):

“One Wisconsin group used geofencing techniques to identify the phones brought into the offices of health care providers such as Planned Parenthood and then used the device IDs to target ads to their owners on social media platforms such as Facebook and Snapchat. Similar campaigns ran in New Jersey, California, Florida, and Colorado. Abortion rights groups expressed concerns that just the use of targeted advertising in this context is problematic from a health privacy perspective. And while advertising can often lead to outcomes that are beneficial for all involved, such as when a consumer purchases a product that they did not previously know about but ultimately find useful, the abortion geofencing campaign is likely one that is a zero-sum game….  [R]esearchers used targeted advertising to display ads about the risks of climate change to members of the Republican Party in a pair of competitive Congressional districts….”

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Abortion Clinics

“Protesters have used geofencing so that third party data brokers bombard abortion clinic visitors’ phones and devices with targeted information about crisis pregnancy centers and adoption agencies. Anti-abortion groups can also purchase geolocation datasets for a specific location, such as Planned Parenthood facilities, from data brokers. The information these brokers provide is anonymized, but does provide assumptions about where the smartphones that visited the chosen location spend the night specified by census tract.”  Carson Goos, Elaine McCabe, “Abortion Protesting,” 26 Geo. J. Gender & L. 245, 260 (2025)

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Employment Issues

Another article wrote:

It’s 10:00 p.m. Do you know where your employees are? For an increasing number of employers, the answer is yes. The location data collected from employees’ smartphones makes it easy, and increasingly inexpensive, to track the whereabouts of employees whenever their phones are with them.

The average person has more than eighty apps downloaded on their smartphone and never leaves home without that phone. Of those eighty-plus apps, many are recording that phone’s location every few seconds. That information is then sold to third-party data collectors, who sell that location data in a lucrative and growing open market. This practice has turned into a $21 billion location data industry that is predicted to more than double to $53 billion by 2030.

Although this data is touted as being anonymized, with the right knowledge and motivation, it is easy to figure out which data sets belong to a specific person. In 2018, the New York Times tested this by trying to figure out which data set, out of millions, belonged to the smartphone of Lisa Magrin, a forty-six-year-old math teacher. It did not take long for them to discover that only one device traveled from Magrin’s home in upstate New York at 7:00 a.m. to her school fourteen miles away and then back to her home late that afternoon. That was sufficient for the Times to track all her smartphone’s movements. Ms. Magrin was disturbed to discover that the Times reporters had learned when she went to Weight Watchers, had a doctor’s visit for a medical procedure, took her dog on a hike, and spent a night at her ex-boyfriend’s house.

Elizabeth A. Brown & Matthew M. Cummings, “Every Step You Take: Securing Employees’ Location Data Privacy,” 26 Minn. J.L. Sci. & Tech. 1, 4–5 (2025).

“In July 2021, the Catholic news outlet Pillar outed a prominent Catholic priest using location data to discover that he attended LGBTQ+ bars and nightclubs, forcing him to resign.

In 2022, ByteDance, TikTok’s parent company, admitted to firing four employees after it learned those employees were using location data to track the whereabouts and relative proximity of journalists and coworkers they suspected of whistleblowing.”  Id. at 5.

“For example, if an employer is aware of a unionization drive, they could geofence that area and see who attended it.”  Id. at *6.

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Employment Issues (Cont.)

“Employers may use geofencing to receive alerts when an employee, equipment, or electronic records enters or exits a defined area. Employers may protect assets, track employees’ location, track employees’ performance, e.g., deliveries per hour, and track hours worked. A geofence may also alert an employer to an unauthorized entry or unauthorized equipment removal and may exclude equipment. An employer can link geofences to equipment, so that it stops working when removed from that area. An employee may use a geofence to protect his privacy or property.”  William E. Hartsfield, 1 Investig. Employee Conduct § 6:37.

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Regulation of Drones and Use at Major Events

“[S]cholars … propose that the adoption of new geofencing technology will solve the problems created by the introduction of widespread drone usage. In particular, this would obviate the need for registration, and for the FAA to place undue restrictions on issuing beyond visual line of sight (BVLOS) permits…^.  Geofencing may indeed be the future for drone manufacturers. Unlike the current regulatory regime, it solves a myriad of problems posed by drones which are not properly addressed under the current regulatory scheme.”  John Ricci, “No Drone Zones: Assessing the FAA’s Role in Implementing Geofencing and the Future of Drone Regulations in the United States,” U. Ill. J.L. Tech. & Pol’y, Spring 2022, at 161, 163.

“Developers can create geofences which can be read by any device containing an onboard GPS system with the requisite software to detect the geofence. Once triggered, the geofence can be used to serve any number of functions from sending text messages, triggering events in mobile games, or even targeting advertising.”  Id. at 168.

“ Geofencing is a far more effective solution to the problem of airspace safety than anything that the FAA has attempted to date….  For example, geofencing technology can help keep drones out of dangerous areas…. Temporary geofences can be set up around huge public events (e.g., the Super Bowl, parades, or concerts), hazardous locations (e.g., wildfires, pipeline explosions, nuclear plants), or people (e.g., the president).” Steve Calandrillo, et. al., “Deadly Drones? Why FAA Regulations Miss the Mark on Drone Safety,” 23 Stan. Tech. L. Rev. 182, 188, 221, 247 (2020).

“Geographical restrictions also found a particularly striking application in the drone industry. DJI, a leading drone manufacturer, employed a Geospatial Environment Online (GEO) system that was built into every one of its drones and which used GPS data to enforce no-fly zones near sensitive locations. DJI’s geofencing system categorized airspace into five zones by color: Red (Restricted, no-fly), Blue (Authorization, unlockable with proof), Orange (Enhanced Warning, extra confirmation required), Yellow (Warning, alerts but no blocks), and Gray (Altitude, where flight is allowed but limited to a specific maximum height).”  João Marinotti, “Defragging Ownership: How Corporations Sliced, Diced, and Sold the Bundle,” 100 Ind. L.J. 1931, 1951 (2025).

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Copyright Royalties

Courts should allow broadcasters to use geofencing to avoid copyright royalties.  Bradley Ryba, “Iheartgeo-Fencing?: The Section 114 Exemption That Illustrates Why Full Sound Recording Rights Are the Sine Qua Non for A Vibrant Music Industry,” 20 Marq. Intell. Prop. L. Rev. 33, 39 (2016).

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Franchise Regulation and Targeting

“Today’s franchise marketing may involve ‘traditional’ advertising, such as advertisement in franchise trade publications or in local or regional business publications; but more often, franchisors are utilizing the technologies of the twenty-first century, such as ‘Google Ads,’ ‘Facebook Ads,’ ‘re-marketing,’ or ‘geo-fencing’ or ‘geo-targeting.’ As applied to digital advertising, the current state of franchise advertising regulations is archaic and antiquated … and frankly inapplicable in most situations.”  Mark J. Burzych, “Franchise Advertising in the Digital Age: Regulators Need to Contemporaneously Address Advancing Advertising Technologies or Step Aside,” 40 Franchise L.J. 221 (2020).

“As described in further detail below, popular advertising technology such as Google Ads, retargeting, remarketing, and geo-targeting, or geo-fencing does not squarely fit in the current regulatory scheme.” Id.

Advertisers can maximize their return on investment (ROI) and click conversions on online ads through geo-targeting and geo-fencing. Geo-targeting is simply customizing an ad campaign to reach audiences (through their computers or mobile devices) who are physically located in a particular geographic area. Both Google Ads and Facebook Ads offer advertisers the option to limit a particular campaign to a geographic area, such as the United States or Michigan. If advertisers want to get even more geographically specific with their ad audiences, they can pursue a geo-fencing strategy.

Geo-fencing allows advertisers to create a virtual box around a geographic location, wherein their ads will appear only on computers or mobile devices that are physically located in the box. Using GPS or Internet users’ IP addresses, advertisers can reach out only to specific users who enter a geographic area relevant to the advertiser’s business. For example, a retail establishment in a shopping mall may draw a several-block radius around the mall to specifically target Internet users who may either be out in the vicinity of the mall, or are already shopping inside. Alternatively, a local pizzeria (say one of two in town) can draw a geo-fence around not only its own location, but also around the location of its competitor, specifically targeting people in the vicinity of its competitor with advertisements showing its comparatively lower prices or current promotional deals.

Many companies take advantage of geo-fencing when customers download their mobile app and opt-in to the app’s “location services.” By allowing GPS to track where the device is located, advertisers can send push notifications, text messages, or PPC (pay-per-click) ads to the device. However, geo-fencing is available to companies that do not have a mobile app to track customers’ movements, and any business with access to Google or Facebook can set up a geo-fencing marketing campaign.

Advertisers can set up geo-fencing campaigns through either Google or Facebook relatively easily. Google Ads users can manually enter a specific location to target their ad campaigns, rather than selecting an entire state or country. Alternatively, advertisers may choose to target a radius of miles around a specific location, allowing the advertisers to maximize the specificity of their targeted audience.

Facebook users have an identical option. When customizing their Facebook ad campaign, advertisers can target their ads to a specified location, such as a particular state or country. If the advertiser wants to be even more specific, Facebook provides an interactive map that allows the advertiser to drop a “pin” on a central location and determine a radius of miles surrounding the pin where the ad campaign will be targeted. Although the minimum radius an advertiser can draw is one mile, advertisers can be even more specific by excluding certain geographic areas captured by the radius.

Id. at 233-34.

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Some Regulatory Efforts

“Though no federal standard yet exists for geolocation data tracking, twelve states have enacted statutes that address data privacy practices in regard to consumers’ geolocation data. Many consider the Virginia Consumer Data Protection Act (‘VCDPA’), which took effect on January 1, 2023, as one of the leading state approaches on the topic. The VCDPA requires controllers of data to obtain affirmative consent from Virginians to process and sell their sensitive data, including their precise geolocation data.”  Eliza Smith-Driggs, “The ‘Right to Be Let Alone’ Should Apply to Geolocation Tracking Within the Home,” 30 Rich. J.L. & Tech. 495, 4 (2024).

“This Note also recommends that Virginia legislators require companies to enable a geofence around a consumer’s home so the consumer can choose when she wants her data collected….  To encourage even more control and home privacy, smart devices could ask homeowners whether they want their geolocation data tracking services turned off once they enter their home…. The default should be that the geofence blocks all trackers. But, for example, if one of the trackers is the homeowner’s mobile carrier needing location data to send a cell signal, the homeowner should be able to manually allow her carrier into the geofence to receive cell service.”  Id. at 65.

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“Buying a Way” Around the Fourth Amendment?

“Well before Dobbs leaked, the Secret Service, IRS, U.S. military, DEA, ICE, CBP, FBI, and governmental entities at the state and local levels had all purchased data from brokers without obtaining Fourth Amendment search warrants. Lawmakers had already begun investigating these entities for “buy[ing] [their] way around the Fourth Amendment.”  Andrew Wade, “The Clocks Are Striking Thirteen: Congress, Not Courts, Must Save Us from Government Surveillance Via Data Brokers,” 102 Tex. L. Rev. 1099, 1101–02 (2024)(cleaned up).

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Geofence Data Must Be Correctly Interpreted to Avoid Error

Geofence data tracks a device, not a person.  “For Jorge Molina, his wrongful arrest arose when a geofence search revealed that a cell phone logged into his accounts was present at the time of a murder; police rushed to arrest him, ignoring evidence that his abusive stepfather used his phone and car.”  Mary D. Fan, “Suspecting with Data,” 109 Minn. L. Rev. 2253, 2256, 2262-63 (2025)(emphasis added).

“The arrest at Molina’s workplace shattered the young man’s life, resulting in his mugshot and name plastered over the news as a killer, six days of incarceration, and an arrest in his records that jeopardized his career and educational goals.”  Id.

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Contract Enforcement

“Geofencing allows lenders and dealers to wield significant control over drivers post-transaction. Such features enable lenders to disable a car once it exits a predetermined area established by the lender. Once a lender receives an alert of the violation, the lender can remotely disable the vehicle to limit the driver’s mobility.”  Stacy-Ann Elvy, “The Vehicle Monitoring and Collection Technology Era,” 110 Iowa L. Rev. 43, 69 (2024).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

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[1] This blog summarizes Ms. Neff’s article.  It is based on, and all quotations are from, that article, unless otherwise indicated.

[2] As used herein, this blog does not discuss obtaining user location data directly from a user’s device through either a search warrant or civil discovery.  It discusses obtaining location data that is collected and stored elsewhere.

[3] For discussion of geofence search warrants, please see Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision – E-Discovery LLC; En Banc Fourth Circuit Geofence Decision is Splintered – E-Discovery LLC; New Jersey Decision Permits Geofence Warrants Upon a Proper Predicate – E-Discovery LLC; Texas Upholds Narrow Geofence Warrant After Melee Resulted in Murder – E-Discovery LLC; Possible Clarity About Geofence Search Warrants – E-Discovery LLC; Geofence Search Warrant Held Valid – E-Discovery LLC (Maryland); Keeping an Eye on Geofence Warrants – E-Discovery LLC; Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent – E-Discovery LLC.

[4] One authority cited by Ms. Neff states: “[E]quating ‘a failure to geoblock with purposeful availment’ would ‘effectively mandate geoblocking for any website operator wishing to avoid suit in the United States.’ …. Safex cites no authority suggesting that such ‘a failure to act might constitute purposeful availment,’….”  Safex Found., Inc. v. SafeLaunch Ventures Ltd., 694 F. Supp. 3d 1, 17 (D.D.C. 2023).

Belvac sought preservation of information in the RAM of Adonis computers and requested entry of an ESI Protocol to that effect.  Adonis disputed feasibility and proportionality.  Applying its Default Standard, the Belvac court concluded that the parties needed to confer more and held, without prejudice, that Belvac had not shown good cause.

COLUMBIA PICTURES v. BUNNELL

Although not cited in Belvac, in 2007, a court wrote: “At the heart of Defendants’ Motion for Review is the following question of first impression: is the information held in a computer’s random access memory (RAM) ‘electronically stored information’ under Federal Rule of Civil Procedure 34?”

In that case, the court held that “data held in the RAM of computers under Defendants’ control is within the scope of discoverable information…”  Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 448 (C.D. Cal. 2007).

Columbia Pictures sued a website operator that permitted downloads of copyrighted pictures. Defendants argued that information stored in RAM was too temporary to be considered discoverable ESI.

The [Columbia Pictures] Court finds this interpretation of “stored” unsupported by the text of the Rule, the accompanying commentary of its drafters, or Ninth Circuit precedent involving RAM. The Court holds that data stored in RAM, however temporarily, is electronically stored information subject to discovery under the circumstances of the instant case.

Id. at 446. In response to arguments that compliance would be “potentially devastating,” the Columbia Pictures court described the narrow contours of its holding and ordered that defendants “begin preserving and subsequently produce a particular subset of the data in RAM under Defendants’ control.” Id. at 448.

BELVAC v. ADONIS

In Belvac, Belvac alleged that Adonis “is reproducing Plaintiff’s copyrighted software in random access memory (‘RAM’) or other temporary storage in violation of the Copyright Act.” Belvac asked the court to enter an ESI Protocol that required preservation:

To obtain the evidence necessary to support its claims, Plaintiff seeks the entry of a protocol to govern the preservation and production of electronically stored information (“ESI”) in this case…. Defendant opposes Plaintiff’s proposal, arguing that Plaintiff has not shown good cause to deviate from the court’s Default Standard.

Id. at *1.  The Belvac court wrote that there was agreement that a “good cause” standard governed its analysis.

The District of Delaware’s Default Standard for Discovery, Including Discovery of Electronically Stored Information (the “Default Standard”), governs the preservation of discoverable information. The Default Standard states that, “[a]bsent a showing of good cause by the requesting party, the parties shall not be required to modify, on a going-forward basis, the procedures used by them in the ordinary course of business to back up and archive data; provided, however, that the parties shall preserve the non-duplicative discoverable information currently in their possession, custody or control.” D. Del. Default Standard, ¶ 1(c)(i).

Id.  The Belvac court explained that:

The Default Standard also identifies a list of specific categories of ESI which need not be preserved absent a showing of good cause. Id. at ¶ 1(c)(ii). Among this list are three categories of ESI relevant to this dispute: (a) deleted, slack, fragmented, or other data only accessible by forensics; (b) random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system; and (c) server, system, or network logs. Id.; Schedule A at ¶¶ 1, 2, & 11.

Belvac asked the court to compel preservation of those three excepted categories, only “to the extent that this information evidences use, reproduction, preparation of a derivative work, and/or distribution of the Belvac Software by Defendant….”  Id.

Belvac argued that, every time Adonis powered on or rebooted equipment, a copy of Belvac’s copyrighted software was made to RAM and retained only until it was powered off.  Belvac contended that Adonis “need only perform real-time retention when it is conducting one of the enumerated reproductive acts,” and that preservation was needed only if it evidenced an alleged infringing act.  Id. at *2.

Adonis argued that Belvac had “not fully engaged” in a meet-and-confer, and the court ordered additional discussions. The court added:

Adonis disputes that “real-time” capture of RAM is even possible, noting that “the only programs Adonis has been able to identify … create a snapshot at the time the capture is initiated. This snapshot would not be a continuous capture of RAM over time.” … Furthermore, Defendant knows of no tool to capture snapshots of RAM in Rockwell PLCs and the PLCs do not create temporary files. Therefore, Defendant contends that there is no ESI in this category that could be preserved on the PLCs.

Adonis also asserted “that the breadth of the preservation requirement would cause delays in production when Defendant needs to contact an outside vendor each time the equipment is rebooted or serviced.”

Adonis estimated that “the cost of the proposed preservation would total between $40,000 and $240,000, depending on certain variables,” however, the court saw “no evidence beyond a brief declaration to substantiate these estimates.”

The Belvac court wrote: “The record before the court suggests that Defendant did not investigate the cost, feasibility, or burden of implementing Plaintiff’s proposal prior to the parties’ meet and confer or the filing of the Joint Motion for Discovery Dispute Teleconference on July 7, 2025.”

The Belvac court denied the motion for entry of an ESI Protocol without prejudice.  It directed further discussions.

For more information on preservation orders and generally applicable standards, see Failed Request for a Preservation Order (Jul. 13, 2022); Requests for a Preservation Order (Mar. 7, 2022).

This blog was initially posted on  Electronic Discovery Reference Model.

The decision begins:

Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the perils and pitfalls of electronic discovery.

When it comes to discovery of text messages, Fed.R.Civ.P. 26(f)(3)(B) provides an under-used tool.  It states that a “discovery plan” must state that parties views and proposals on “whether discovery should be conducted in phases….” Text message discovery may benefit from a phased discovery agreement in an ESI Protocol or Discovery Plan.[1]

While some suggest that an ESI Protocol should be bare bones, there seems to be a consensus that That an ESI Protocol Must be Specific (Apr. 2, 2025).

The primary issue in We the Protestors was whether a producing party could unilaterally redact parts of produced text message strings.  Implicit in that issue is the question of, in the digital realm, “what is a document?” The terms of the ESI Protocol provided the answers.

The underlying case, involving claims and counter-claims, arose “from an acrimonious breakup involving the founders of a nonprofit organization, Campaign Zero, formed to educate the public about police violence through data-driven analysis and to advocate for police reform.”

The court wrote that:

The two sides had agreed to collect and review all text messages in the same chain on the same day whenever there was a text message within the chain that hit on one of the agreed-upon search term[s]. [Emphasis added].

However, the parties interpreted the agreement differently:

• “Unlike Defendants, Plaintiffs understood that they only needed to produce messages from the same-day period that were responsive or provided context for a responsive text message.”
• “Upon reviewing Plaintiffs’ production, Defendants objected and claimed that Plaintiffs’ unilateral redaction of text messages within a same-day text chain was improper.”

Defendants moved to compel production of “unredacted copies of all text messages in the same chain that were sent or received within the same day.”  Plaintiffs objected and, alternatively, sought a protective order.

This blog focuses on redaction.  Unilateral redaction was deemed to be improper under the parties’ incomplete agreement.  The protective order was granted in part subject to a meet-and-confer mandate and is not discussed in this blog.

The court began its analysis as follows:

Text messages are an increasingly common source of relevant and often critical evidence in twenty-first century litigation. They do not, however, fit neatly into the paradigms for document discovery embodied by Rule 34 of the Federal Rules of Civil Procedure, which was crafted with different modes of communication in mind.

The court contrasted email, writing that:  “Email at least retains a resemblance to conventional documents in that each email or email chain can be viewed as a single, identifiable ‘document.’”

In my opinion that statement is correct only as a general matter.  Hyperlinks or “modern attachments,” for example, also present the issue of “what is the document?”  See, e.g., Uber Technologies – Another Hyperlink Decision (Mar. 6, 2025); ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue” (Nov. 13, 2023).  Like texts, an email with a “modern attachment” – – a pointer hyperlink and a target document – – does not fit neatly into the court’s description of email as a “single, identifiable document.”

However, having characterized email as a single document, the We the Protestors court next distinguished text messages from email:

With text messages this is not so clear. For discovery purposes, should each text message be viewed as its own stand-alone “document” or item of ESI? Or is the relevant “document” the entire chain of text messages between the custodian and the other individual or individuals on the chain—which could embrace hundreds or thousands of messages going back for years? Should the producing party be allowed to redact non-responsive texts and, if so, to what extent? Litigants, and courts, are still in the process of figuring out how to answer these questions.

Noting that plaintiffs’ counsel described email as a “stream of consciousness,” the We the Protestors court explained that:

“Federal courts have adopted different approaches with respect to text messages.” Lubrizol Corp. v. IBM Corp., No. 1:21-CV-870-DAR, 2023 WL 3453643, at *3 (N.D. Ohio May 15, 2023). Some courts have suggested that “a party must produce the entirety of a text message conversation that contains at least some responsive messages.” Id. (citing cases). This is the approach taken in the leading case on the issue in this District, Al Thani v. Hanke, No. 20 Civ. 4765 (JPC), 2022 WL 1684271 (S.D.N.Y. May 26, 2022).

In Al Thani, the court also restricted redacting.[2]

The We the Protestors court explained the opposing views:

By contrast, some courts in other jurisdictions have held that “the producing party can unilaterally withhold portions of a text message chain that are not relevant to the case.” Lubrizol, 2023 WL 3453643, at *4 (citing cases).

It added:

“Still other courts have taken a middle ground.” Id. (citing cases). In Lubrizol, which involved a dispute concerning Slack instant messages (which the court analogized to text messages), the court approved plaintiff’s proposal that, for any Slack conversation containing more than 20 total messages, the defendant be required to produce the ten text messages immediately preceding, and the ten messages immediately following, any responsive text message. Id. at *1, *4.

The We the Protestors court strongly suggested that the best course of action is an agreement between the parties:

Litigants are free to—and are well-advised to—mitigate the risk of this uncertain legal regime by coming to their own agreement about how to address text messages in discovery. Rule 29(b) specifically affords parties the flexibility to design their own, mutually agreed upon protocols for handling discovery. See Fed. R. Civ. P. 29(b)…. [Emphasis added].

The court suggested that negotiation was possible because of what, during the Cold War, was called “mutually-assured destruction”:

In the context of text messages, an agreed-upon protocol is particularly sensible where, as here, both sides are seeking and will be producing such information. A party may think twice about insisting on the most burdensome and costly method of reviewing and producing text messages for its adversary if it knows it will be subject to the same burden and cost. Similarly, when it comes to redactions, while a party may be happy to receive unredacted messages from the other side, it may forgo that potential benefit if that allows it to redact information from its own production. In general, the parties are better positioned than the court to customize a discovery protocol that suits the needs of the case given their greater familiarity with the facts, the likely significance of text message evidence, and the anticipated volume and costs of the discovery.

In We the Protestors, the parties reached an agreement, but disagreed over its application.

Counsel for Plaintiffs ultimately sent an email stating: “We are amenable to reviewing all texts in the same chain sent or received on the same day as any text that hits on any of the search terms. Please confirm whether [Defendants] are prepared to do the same.” … Counsel for Defendants replied: “Confirmed.”

Based on their view of the agreement, plaintiffs redacted 1,015 text chains.

The We the Protestors court wrote that it was resolving a dispute based on the parties’ agreement.  It emphasized that it was not seeking the “right answer” to the redaction question.  “The Court’s task on this motion is thus more akin to filling a gap in the parties’ incomplete agreement.”

What the parties’ agreement did not explicitly address is whether, in producing those same-day text chains, texts deemed irrelevant and non-responsive would be redacted or, instead, the chains needed to be produced in their entirety.

Viewing the agreement as a contract, the We the Protestors court  then applied Al Thani’s holding that “’parties may not unilaterally redact otherwise discoverable’ information from text messages for reasons other than privilege.”  The court wrote that:

It should have been clear to Plaintiffs that Al Thani operated as a default rule forbidding redactions in text message chains absent a judicial decision, or an agreement by Defendants, permitting redactions…. [I]f Plaintiffs wanted to make redactions without Defendants’ agreement, Plaintiffs needed to seek court permission to do so….  Plaintiffs were not free to decide on their own that redactions to Plaintiffs’ production were appropriate. [Emphasis added].

The court added:

It is not as if the parties had agreed that redactions were permissible with respect to other document discovery. To the contrary, Plaintiffs’ counsel acknowledged that Plaintiffs produced emails without redactions, even though the parties followed the “same principle” for emails as they did for text messages….

The We the Protestors court wrote that “the Court construes the absence of a provision in the parties’ agreement allowing redaction of text messages to preclude Plaintiffs from unilaterally making such redactions.”

Redactions of purportedly irrelevant information in a responsive document have generated a substantial amount of case law and I suggest that We the Protestors follows the majority approach:

• Relevance Redactions Prohibited – Again (May 17, 2024);
• 8 Lessons Learaned – Part III – Redaction Provision of ESI Protocol (May 8, 2024);
• Relevance Redactions Revisited (Jul. 5, 2023);
• Relevance Redactions Rejected – Rule 26(f) Resolution (Mar. 23, 2022).

One argument in favor of redaction of irrelevant parts of a responsive document is that the scope of discovery governs and the redacted material is outside the scope.  Therefore, it is not discoverable.

Arguments against unilateral redaction based on irrelevance include the need for context and that a discoverable document should be discoverable in its entirety:  “It is a rare document that contains only relevant information; and irrelevant information within an otherwise relevant document may provide context necessary to understand the relevant information.” Athletics Investment Grp., LLC v. Schnitzer Steel Industries, Inc., 2024 WL 2191007 (N.D. Cal. May 14, 2024); accord Al Thani v. Hanke, 2022 WL 1684271, at *2 (S.D.N.Y. May 26, 2022)(citation omitted). Courts have also said that redaction breeds suspicion.  And, some courts have agreed that non responsiveness redaction is not permitted unless there is an articulated harm supporting it.[3]

Another question presented in We the Protestors is “what is the document?”  The parties used a arbitrary temporal definition and that may be reasonable.  Others suggest an arbitrary yardstick of X messages before and X messages after the text message that is relevant.

All of this is an effort to provide context to a communication method – text messaging – that commingles content.  A broken clock is correct twice a day.  Any arbitrary yardstick delineating the cutoff point for text messages is likely to capture irrelevant information at least some of the time and may also “miss” messages that are needed for context, but which are outside of the defined window.

Back in the days of paper-based litigation, it was rare to argue over the definition of a “document.”  What is a “Document?” (Aug. 17, 2021).  However, that view was moved to the rear-view mirror by decisions such as Sandoz v. Un. Therapeutics Corp., 2021 WL 2453142 (D.N.J. Jun. 16, 2021)(texts), and, Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. Mar. 11, 2021)(hyperlinks).

I have raised a similar issue in the context of spreadsheets, Excel workbooks, and other multi-content electronic files, such as a PDF Portfolio. What is a Document? (Part II) (Aug. 28, 2021); What is a Document? (Part III) (Apr. 4, 2022).

A parallel issue is presented by hyperlinked documents in email, “Modern Attachments” or “Pointers”- What is a Document? (Part IV) (Aug. 12, 2022); ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue” (Apr. 29, 2024); More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability”

The Sedona Conference has raised the same question regarding collaboration platforms.  Sedona Conference Commentary on Discovery of Collaboration Platforms – What is a Document? (Apr. 10, 2025), referring to The Sedona Conference®  “Commentary on Discovery of Collaboration Platforms Data, Public Comment Version” (Apr. 2025).

In We the Protestors, the defintional window was defined as one day.  One may ask, “what was the document?”  Was a full day of text messages a “document”?  What would happen if a key message was sent at the end of the day and the response sent the next day did not “hit” on a keyword?  Would the parties have to “live with” their agreement, thereby missing relevant, proportional, discoverable information?

I have suggested in several blogs that an arbitrary yardstick such as that used in We the Protestors, is likely reasonable and appropriate for discovery.  I have no criticism of it and it may be perfectly appropriate in an ESI Protocol or Discovery Plan.  Since the earliest days of e-discovery, parties have been advised to discuss the form or forms of production.  The Sedona Commentary emphasizes this – – and much more – – in the context of collaboration platforms.

However, because discovery is not an end in itself, evidentiary issues may arise when a “document” is truncated during the unitization and discovery process. ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue” (Nov. 13, 2023);  What is a “Document?”  (Aug. 17, 2021).

And, of course, the need for “context” was addressed in decisions such as Sandoz v. Un. Therapeutics Corp., 2021 WL 2453142 (D.N.J. Jun. 16, 2021)(text bubbles).

Let’s assume a civil action for battery.  A text that “Joe hit me” is relevant.  Assume it was followed by 30 texts about the following night’s dinner.  One litigant may deem them irrelevant while the other may contend that they demonstrate a lack of pain and suffering.

Let’s assume a civil action for breach of contract.  A text states “I ordered 50 copies and only receive 10.”  Assume it is followed by 30 texts about the next night’s dinner.  They are likely irrelevant by any standard.

There is  no one size fits all approach and, when parties are negotiating an agreement, at least one of them likely has little or no knowledge about the other’s text messages.

In my opinion, one factor that should be considered in these discussions is how the produced communications can be used in depositions, motions, and at trial.  See, e.g., What is a “Document?” (Aug. 17, 2021).  “Half” of a document, or a partial document, may be objectionable.

Fed.R.Evid. 106 states:

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part–or any other statement–that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

The Advisory Committee Note provides an example: “[A]ssume the defendant in a murder case admits that he owned the murder weapon, but also simultaneously states that he sold it months before the murder. In this circumstance, admitting only the statement of ownership creates a misimpression….”

A similar issue may be presented by complex electronic communications.  For a more detailed example of the evidentiary issue, please see What is a “Document?” (Aug. 17, 2021).

Agreements regarding ESI should not become traps.  Be Careful What You Agree To, But the Duty to Cooperate May Provide an Escape Hatch (Part II) (Nov. 11, 2022).

Courts should not unreasonably require compliance with an agreement that is no longer reasonable and proportional, while also not casually disregarding such agreements.  Sanctions Denied, But Be Careful What You Agree To (Part I) (Oct. 2, 2022); The ESI Protocol: Your Word is Your Bond… Or, Is It? (Jan. 11, 2024); StubHub: Modification of ESI Protocol and Denial of Sanctions – Performance Was Impossible (May 23, 2024); ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue”  (Apr. 29, 2024).

When it comes to texts, context should be the key determinant of the scope of the duty to produce. “[A] single text message, standing alone, is oftentimes meaningless without other messages in the text chain to provide context.”  Al Thani, 2022 WL 1684271, at *2; Sandoz, 2021 WL 2453142, at *2 (directing production of “context-related text messages”).

If parties make a reasonable agreement for discovery purposes based on what is known at the time; however, later production and review demonstrates a need for modification to provide appropriate contextual information, that changed circumstance should constitute cause for an application to the court to modify the agreement.

Assume, for example, that the parties in We the Protestors had agreed:

Text message discovery will be conducted in phases.

In Phase 1, a producing party shall collect and review all text messages in the same chain on the same day whenever there was a text message within the chain that hit on one of the agreed-upon search terms.[4] Absent good cause shown, and with the exception of privileged material, the entire day’s message chain shall be produced.  If the producing party has good cause, it may redact material that is beyond the scope of discovery under Fed.R.Civ.P. 26(b)(1) or subject to protection under Fed.R.Civ.P. 26(c).  Redactions shall be clearly marked with the specific reason for the redaction.

In Phase 2, if the discovering party believes that necessary context is lacking, or that Fed.R.Evid. 106 requires production of redacted information, it shall notify the producing party and, after meeting and conferring, the discovering party may move to compel production of redacted text that it alleges is contextual or required by Rule 106.

The substantive standard for resolution of any such motion shall be the scope of discovery under Fed.R.Civ.P. 26(b)(1), the rule of completeness under Fed.R.Evid. 106, the need for protection under Fed.R.Civ.P. 26(c), and, the need for the redacted material to provide context to the produced material.  The burden shall be on the redacting party to show that redaction is proper by a preponderance of the evidence.

Nothing contained herein modifies a party’s right to redact privileged information or attorney work product under the appropriate other provisions of this Discovery Plan.

While not mentioning phased discovery, the We the Protestors court wrote:  “One might think that, before producing hundreds of unredacted text chains in their entirety (in the case of Defendants), or before going to the trouble and expense of redacting tens of thousands of messages from more than a thousand text chains (in the case of Plaintiffs), counsel would have contacted its adversary to confirm that the other side was handling their production in the same manner. Such an inquiry would have flushed out the parties’ disparate understandings and led to additional negotiations and, perhaps, an agreement on the redaction issue. But neither counsel called or emailed (or texted) its adversary to engage in that discussion.”

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

[1] For the differences between the two terms, please see “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).

[2] In Al Thani, the plaintiff self-redacted 259 communications based on her view of relevance, without involvement of her counsel.  2022 WL 1684271 at *1.  The court reviewed them in camera and ordered production without redactions. The court wrote that “[a] court may, under certain circumstances, permit redactions where there is a finding of good cause based on a need to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”  Id. at *2 (cleaned up).  The court relied in part on Fed.R.Civ.P. 26(c).

[3]  Of course, redaction for privilege is permitted.  Redaction of material protected by statute, personal identifiable information, and information governed by agreements, may also be permissible.  8 Lessons Learned – Part III – Redaction Provision of ESI Protocol.

[4] This is the form used in We the Protestors.  Other iterations are possible, such as X messages before and X messages after the message containing the search term.

My comment is that the Commentary is excellent and well worth reading.

I am not going to try to summarize the comprehensive, 32-page document.  Instead, I will discuss one issue, “document unitization.”

The Commentary defines “document unitization,” as “dividing continuous communication strings such as chat or instant messages into more manageable units, such as a 24-hour period….”

Sedona suggests unitization methodologies, such as “before and after” agreements and use of date ranges, as well as their advantages and disadvantages.

As to date range unitization:

For chat and instant-message data, consider whether the collection should be limited to certain date ranges. Unitizing (i.e., breaking up) continuous message strings into smaller pieces is becoming a common practice. Options include breaking up strings into certain time periods (e.g., 24 hours) or into a certain number of messages. If the relevant participants are all in the same time zone, it may be best to process in that local time zone and unitize at, for example, midnight. If the participants are in different time zones, then processing by UTC zone and unitizing either by 24-hour periods or by breaks in discussion may be preferred. The potential downside of unitization by time period or number of messages is that it can artificially break up continuing conversations into separate documents, requiring the parties to manually reassociate them for use in the litigation. [emphasis added].

As to “before and after” unitization agreements:

One method to organize responsive messages is to produce a certain number of messages before and after a responsive chat message. Another method is to identify and organize communications from a particular time range or date range. These are both forms of “unitization” in production. The potential downsides to these approaches include that there may be messages outside the selected message range that would also provide helpful context, and those messages would not be produced as a single conversation if the parties are following such a protocol. [emphasis added].

After noting the advantages and disadvantages of unitization, Sedona discusses the alternative:

Not breaking up the message string into different units, however, would likely result in both irrelevant and relevant messages being produced together. The production of such irrelevant messages may increase the risk that personal and sensitive information is produced. Communication within chat and instant-messaging applications may also jump from one subject to another in quick succession, and then back to earlier subjects. Breaking up the conversation into different units may therefore require the parties to reassociate the related messages manually….

The Commentary summarizes the current decisional authority as follows:

Some courts’ decisions reflect that information contained in continuous message streams may need context, and therefore even messages that by themselves may be considered irrelevant may nevertheless be discoverable because they provide needed context to other relevant communications. Other courts, however, have held that the producing party can unilaterally withhold portions of a text message chain that are not relevant to the case.

The unitization or context issue is not unique to collaboration platforms.

I have written a series of blogs on the topic of “what is a document?” “Modern Attachments” or “Pointers”- What is a Document? (Part IV) (Aug. 12, 2022).

In those blogs,[1] I pointed to parallel issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, and PDF Portfolios.  In each instance, one may reasonably ask “what is the document?”

Trial, or at least trial preparation, is the primary endgame of discovery:

The fundamental objective of discovery is to advance the sound and expeditious administration of justice by eliminating, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation.

Rodriguez v. Clarke, 400 Md. 39, 57, 926 A.2d 736, 747 (2007)(cleaned up; emphasis added).[2]

While Fed.R.Civ.P. 26(b)(1) states that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable,” discoverable material that does not meet evidentiary standards may be of little or limited value.

In the words of the Hon. Paul W. Grimm (in a different context), “considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.”  Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).  Judge Grimm wrote that “[w]henever ESI is offered as evidence,… evidence rules must be considered….” [emphasis added].

Because discovery is not an end in itself, I have discussed, in detail, evidentiary issues that may arise when a “document” is truncated during the unitization and discovery process.  What is a “Document?” (Aug. 17, 2021).  And, of course, the need for “context” was addressed in decisions such as Sandoz v. Un. Therapeutics Corp., 2021 WL 2453142 (D.N.J. Jun. 16, 2021)(text bubbles).

Since the earliest days of e-discovery, parties have been advised to discuss the form or forms of production.  The Sedona Commentary emphasizes this – – and much more – – in the context of collaboration platforms.

In my opinion, one factor that should be considered in these discussions is how the produced communications can be used in depositions, motions, and at trial.  Fed.R.Evid. 106 states:

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part–or any other statement–that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

The Advisory Committee Note provides an example: “[A]ssume the defendant in a murder case admits that he owned the murder weapon, but also simultaneously states that he sold it months before the murder. In this circumstance, admitting only the statement of ownership creates a misimpression….”  A similar issue may be presented in complex electronic communications.  For a more detailed scenario of the evidentiary issue, please see What is a “Document?”

____

[1] A single file may contain multiple documents.  What is a Document? (Part III) (Apr. 4, 2022)(Excel workbooks and Adobe Portfolios); What is a Document? (Part II) (Aug. 28, 2021)(user created data such as Excel formulas).

[2] “Civil discovery is a device to allow parties to obtain information for the purpose of preparing and trying a lawsuit.”  Gillard v. Boulder Valley Sch. Dist. Re.-2, 196 F.R.D. 382, 387 (D. Colo. 2000); Seattle Times Co v. Rhinehart, 467 U.S. 20, 34 (1984) (“Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes”); Hickman v. Taylor, 329 U.S. 495, 507 (1947)(“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”).

While written in a different context, “considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.”  Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007)(Grimm, J.).

For some of the prior history of Uber Technologies, please see: ESI Protocol Dispute – “Modern Attachments” and the “Humpty Dumpty Issue” (Apr. 29, 2024).

The new Uber Technologies decision began as follows:

As an overarching question, many of the parties’ disputes here implicate the ESI Protocol filed on May 3, 2024 as Dkt. No. 524. Before the Court approved the ESI Protocol, the parties disputed whether a hyperlinked document, such as a cloud-based document in Google Drive, constitutes an attachment. The Court determined that a hyperlinked document is an attachment, for purposes of the ESI protocol in this litigation, because it is akin to a traditional email attachment, where the email message and hyperlinked document reflect a single communication at a specific point in time.… Accordingly, the ESI Protocol treats hyperlinks as “attachments,” but does not require Uber to provide contemporaneous versions of all hyperlinks….

Id. at *1 (Emphasis added).

The ESI Protocol defined “attachments” and stated that: “This definition does not obligate Uber to produce the contemporaneous version of Google Drive documents referenced by URL or hyperlinks if no existing technology makes it feasible to do so.”

The court wrote that:

In this litigation it has been established that it is technologically feasible for Uber to produce contemporaneous versions of Google Drive files (Google Docs, Sheets, etc.) stored in the normal Google Drive cloud storage system when linked in an email, but it is not technologically feasible for Uber to automate the production of contemporaneous versions when Gmail messages and hyperlinked Google Drive files have transitioned to the Google Vault storage system. At least for Google Drive hyperlinked email attachments, the ESI Protocol requires Uber to provide metadata linking the hyperlinked document to the email where it is referenced.

Id. This was accomplished using a “LINKBEGBATES” metadata field.

The Uber Technologies decision addressed three hyperlink issues  and one email threading issue.

Issue 1: Hyperlinks to Non-Google Drive Documents[1]

The court stated: “Plaintiffs seek at least metadata, and perhaps also production of the underlying documents, for hyperlinks that reference resources other than Google Drive documents. Uber contends that this is not required by the ESI Protocol (which instead focuses on Google Drive hyperlinked attachments), while Plaintiffs argue that it falls within Uber’s obligation to provide sufficient metadata to establish parent-child relationships between documents and their attachments. Uber also presents evidence that currently the production of hyperlinked non-Google Drive documents is not technologically feasible at scale.”

Plaintiffs did not dispute the evidence.  Instead, they relied on the ESI Protocol which stated that Defendants would preserve the association between parents and attachments.  The protocol also provided that hidden URL’s would be extracted and included in the text.  Id. at *2.

The court wrote:

Even if the ESI Protocol could be read as requiring metadata, beyond the URL for hyperlinks to non–Google Drive documents, there is no obligation where it is technologically infeasible for Uber to do so at scale. Uber cannot use a method of collection and processing that preserves a certain metadata relationship, if the method does not exist. Furthermore, it is not clear what metadata fields Plaintiffs seek, and which metadata fields Uber must provide under the ESI Protocol for hyperlinked non-Google Drive files that can be collected and produced by Uber in an automated fashion, if any.

The court made three rulings on this issue:

• “[W]here Plaintiffs believe a particular hyperlink is potentially relevant and further information besides the URL is necessary, Plaintiffs may ask Uber to produce the hyperlinked document, or to identify its Bates number if already produced. If the linked document has already been produced, Uber must identify it by Bates number. If the linked document has not already been produced, Uber must produce it if it is relevant to the case or to a reader’s ability to understand the document that links to it (and is not privileged or otherwise protected from disclosure). Uber need not produce documents for hyperlinks to public websites.”
• “The parties are ORDERED to meet and confer as to a protocol for such requests, and to file either a stipulation or joint letter no later than one week from the date of this Order. Such a protocol may include a limit on the number of requests Plaintiffs may make if the parties believe that is appropriate. If there is a dispute as to the number of requests to allow, the Court is inclined to allow a large number.”
• “Separately, the parties are also encouraged—but not required—to consider whether it is technologically feasible to include further useful information regarding hyperlinked non–Google Drive documents in future document productions, and whether doing so would be more efficient than providing such information through case-by-case requests.”

Issue 2: Hyperlinks Within Non–Google Email Documents

The ESI Protocol required production of hyperlinked documents that appeared in communications. “Plaintiffs contend that Uber has not been producing documents or metadata (other than URLs) for hyperlinks that appear in documents other than emails sent through the Google Gmail platform, which the Court understands to be Uber’s internal email system.”  Id. at *2.

The Uber Technologies court wrote:

Even if the ESI Protocol required more, namely the production of documents hyperlinked in documents other than communications, Uber has presented undisputed evidence that this is not feasible using Google Vault or a third-party tool.

The court considered the capabilities of “Google Parser” and wrote:  “Plaintiffs have not since presented any evidence that it is technologically feasible to automate the production of hyperlinks within non-Google emails or chats, though one of Uber’s declarants noted that Microsoft Purview facilitates the collection of linked documents as part of a message collection.”  However, Microsoft communications were not at issue in this case.

The court ruled:

If it has not already done so, Uber shall produce documents hyperlinked in Google chat messages, and related metadata to the extent feasible. The parties shall meet and confer and stipulate to a deadline for the production. As to hyperlinks contained in documents other than Google emails and chat documents, the same outcome as described for Issue 1 is appropriate, and the parties are ORDERED to comply with the process set forth in the preceding section with respect to hyperlinks appearing in documents other than Gmail and chat messages.

Issue 3: Missing Information Regarding Typical “Modern Attachment” Links

Plaintiffs asserted failure to produce metadata required by the ESI Protocol “for links to Google Drive documents from Gmail messages.”  The parties reported that they had narrowed the dispute and the court ordered continued discussions and a report.

Issue 4: Email Threading

“The ESI Protocol calls for treating each email as a distinct document, rather than allowing for production of consolidated email threads….” Id. at *3.

Even where Uber does not produce an earlier email separately, the later email that has been produced often quotes the content of the earlier emails in a thread below the new message. Uber apparently has not been producing documents or metadata (other than URLs) for hyperlinks appearing in that quoted text. Uber contends that it is treating such links in the same manner as traditional attachments, which often would not be included in a reply to the original message where the document was attached…. That is often (but not always) true for threads created by email replies, although it is similarly often (but not always) false for threads created by forwarding earlier emails.

The court wrote:

Can a hyperlink within an earlier email be considered the equivalent of an attachment to a later email that quotes the earlier email? Under some circumstances, perhaps—but the question does not have a clear, universal answer, and the ESI Protocol does not speak to this issue directly. Once again, the Court concludes that, at this stage of the case, a process of handling such issues by request is appropriate under the same framework discussed above.

Id. at *4 (Emphasis added).

The Decision

The Uber Technologies court wrote:

The parties are ORDERED to meet and confer as to a protocol for Plaintiffs requesting and Uber providing either documents or metadata for: (1) hyperlinks to sources other than Google Drive documents; (2) hyperlinks within documents other than Gmail messages; (3) earlier-in-time emails that are quoted in produced emails but have not been produced separately; and (4) hyperlinks within such earlier-in-time emails. Uber need not produce documents that are irrelevant, privileged, or protected from disclosure. For hyperlinks to public websites, Uber need produce documents or information other than URLs, except that Plaintiffs may request contemporaneous versions of Uber’s own public webpages where relevant. [Emphasis added].

One More Thing to Consider

Discovery is not an end to itself.  The goal of document production, including production of ESI, is to develop admissible evidence for use at trial.

There may be a significant evidentiary issue if a target document from a communication is not produced with the pointer.  Here is the problem in a non-hyperlink context: “At the time the email was transmitted, the sender or recipient saw the email message with the unopened attachment on the screen. Nevertheless, is it fair to show the deponent an email that had attachments… without simultaneously showing the attachments to the deponent?”  M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011), Chap. 23.

In my opinion, that issue may survive in the hyperlinked context.  In 8 Lessons Learned – Part I – The “Humpty Dumpty” Clause of ESI Protocol (May 6, 2024), I wrote:

Fed.R.Evid. 106 and the “rule of completeness” may be implicated by offering into evidence, for example, an email that points to a document without also offering the actual target document.   See “Modern Attachments” or “Pointers”- What is a Document? (Part IV) (Aug. 12, 2022);  More on “Modern Attachments,” “Pointers,” or Hyperlinked Documents – Humpty Dumpty and “Usability” (Nov. 13, 2023);  What is a “Document?” (Aug. 17, 2021); M. Berman, “Use of ESI in Depositions,” Chap. 23 in M. Berman, et al., eds., “Managing E-Discovery and ESI” (ABA 2011).

After all, a litigant could not offer only one page of a three-page letter.  Is that the same here?  If pointers and targets are not relinked in the discovery process, will the separated documents be “usable” or admissible in motions, depositions, and trials?

In What Hath Noom Wrought? (Apr. 25, 2023), I provided a detailed scenario to illustrate the potential evidentiary issue.

In short, when it comes to “modern attachments” being used as evidence, there may be a basic definitional question – “what is a document?”  See What is a Document? (Part III)(Apr. 4, 2022)(discussing multi-content electronic files, such as text strings, email strings, spreadsheet workbooks, PDF portfolios).

When parties are negotiating ESI Protocols regarding the manner of production of hyperlinked documents in discovery, it may be important to also discuss evidentiary issues and to discuss how those documents – – or what to a witness may be only a partial document – – will be used in depositions and trial.

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[1] Although not in quotes, the issues in this blog are precisely as stated by the court.