Court Orders Cooperation to Create ESI Protocol and Re-Production of ESI in Searchable Format

In re Facebook PPC Adver. Litig., No. C09-3043 JF (HRL), 2011 WL 1324516 (N.D. Cal. Apr. 6, 2011)

In this case, the court granted plaintiffs’ motion to compel Facebook’s participation in the creation of an ESI Protocol, despite Facebook’s resistance, and ordered that Facebook re-produce ESI in native format.  The court also prohibited Facebook’s use of Watchdox.com, a website on which Facebook had made available responsive documents, subject to its significant control (e.g., uploaded documents could not be printed and Facebook was able to track which documents had been reviewed and by whom).

Following several discovery-related disputes, plaintiffs sought to compel Facebook’s participation in the creation of an ESI Protocol “that would ‘set forth the manner and form of electronic production, including an agreement on search words or phrases, custodians, time frame and/or terms that Facebook will employ in producing ESI ….’”  Facebook resisted and argued that there was “no basis” for the court to “impose ‘rigid[,] up-front requirements that [P]laintiffs are demanding’” and stated “concern” that “forcing the parties to try to anticipate and address all potential issues on the form of electronic production would likely have the result of frustrating and slowing down the discovery process.”

Rejecting Facebook’s arguments, the court reasoned that “[t]he argument that an ESI Protocol cannot address every single issue that may arise is not an argument to have no ESI Protocol at all” and that “the clear thrust of the discovery-related rules, case law, and commentary suggests that ‘communication among counsel is crucial to a successful electronic discovery process.’”  Accordingly, the parties were ordered to meet and confer to agree to an ESI Protocol that would address both the format of production and search terms.

The court next turned to Facebook’s production of ESI.  Specifically, plaintiffs objected to Facebook’s production of ESI in nonnative and unsearchable forms.  For example, Facebook produced an 18,000-page customer complaint database in PDF format.  Additionally, plaintiffs objected to Facebook’s use of Watchdox.com, a website to which Facebook had uploaded responsive documents for plaintiffs’ review, but which allowed Facebook to restrict the review in certain ways, including prohibiting the printing of documents.  Other restriction options which were previously used but were later turned off included “setting document expiration dates, tracking which documents had been reviewed and by whom, and rendering documents non-searchable or non-annotatable.”

Once again, the court rejected Facebook’s arguments, including that Watchdox.com was necessary because of the sensitive nature of the documents—an argument “belied” by the parties’ agreed upon protective order.  Accordingly, Facebook was prohibited from further use of the site and ordered to re-produce any documents that had been uploaded to it.  The court also ordered the re-production of “any documents that were produced in an unsearchable format.”  Specifically addressing Facebook’s argument that there was “no feasible way” to produce the database discussed above because of its proprietary format, the court noted two possible alternatives:  1) that “Plaintiffs’ counsel could go to Facebook to review the database there”; or 2) that “Facebook could provide Plaintiffs’ counsel with a computer onto which the proprietary software and the database are loaded.”  The court further ordered the parties to meet and confer to settle the issue.