[Webcast Transcript] What’s Now and What’s Next? Trends, Technologies, and Legal Authority Shaping eDiscovery for Cybersecurity, Governance, and Investigations

Yeah. I’d like to comment briefly on the AI search, as I find it particularly interesting. As the AI develops, I believe more companies will utilize it to search for responsive documents or potentially relevant ones to implement preservation or collection. I think that AI, right now, is probably not at the point where it would constitute a reasonable inquiry, based on my understanding. I don’t think we’re there yet. I know that it’s not always accurate and not always to the T when identifying a large universe of documents. If we can get there, I think we could see AI implementing preservation and collection in the future. And if we can also validate that in some way, which I know is difficult because if you’re looking at a very large environment of documents, that can be very difficult. But if it can be validated in some way, then why would it not be a reasonable search? Right? In this case, there was not enough information for the individual who developed his own agent. I mean, who knows what that was, right? To be able to really know if it was a reasonable inquiry. And I don’t think the tools are there yet, generally. So, I agree with the court’s decision that this was not a reasonable search under 26(g). However, I do want to raise the issue that in the future, we may see it there.

Phil Favro

Yeah, agreed. Agreed. And, just by way of background on the case, for those who’ve been listening and reading the slides, it should be self-apparent. You’ve got a defendant whose search has been questioned by the court and by the other side, claiming that his search is very thorough, he’s done his job, and he’s used an AI agent to search through his records to identify relevant responsive information. And the court didn’t specifically address that issue of whether the agent, whatever that means, nobody really knows because it’s not really detailed here in the case, but whether that was an effective way. However, I think we can reasonably infer that the answer was a big no, because the court ordered the defendant to turn over all relevant records that he hadn’t already turned over, as well as the records he hadn’t yet turned over. He needed to go back and review everything before he did that. It’s pretty clear that the court wasn’t impressed with his search. And, Judge Adams, what’s your reaction here on what the court’s ruling and Leeanne’s comments?

Judge Adam

Well, I mean, I would agree with the court’s ruling here, and the thing that struck me, two things. One was that he created his own AI agent, which, as you said, we don’t know what that means. However, the record also indicates that this is a pro se defendant, and that raises some interesting issues for all of us when dealing with pro se individuals. But in addition to the fact that he created his own artificial intelligence agent, the problem the court was having was that when you looked at his responses that he’d given, he would say, “Oh, I’ve produced all documents,” but then when they would come back and say, “Yeah, but we got this from somebody else, why don’t you produce it?” “Oh, well, yep, here it is.” A pattern of behavior had developed with him. I agree with Leeanne about the case and believe it’s correctly reasoned. I think that 26(g) reasonable inquiry, AI could, if it were a verified tool, down the road, be helpful to get you to a reasonable inquiry. I think that today, given the current state of affairs, most courts are likely to say ‘trust but verify’. We want to know more than that. You just used AI to make your discovery, but did you then go back and perform some sampling or verification to ensure it pulled the correct documents? I don’t think you can take out that human factor. I think that’s still going to have to be part of the reasonable inquiry. Now, down the road, could that go away if AI becomes just so perfect? Maybe, but I think judges are going to have a real hard time with just saying, “Okay, you used AI, that’s fine. We’ll stop there.”

Phil Favro

I think there’s always going to be the human element with counsel being involved, and like Leeanne had said, there’s got to be a validation. You have to be able to validate whether it’s preservation, the search, or whatever it might be, and have methods for handling that. And I think Judge Adams, your point about trust but verify is great. My family, part of which comes from Italy, has an old Italian saying that some of you have heard me offer from time to time: ‘Trust is good, but not to trust is better.’ And when it comes to these kinds of issues, not to trust is better, to verify is better. So I agree. Do you have any closing thoughts on this, Leeanne?

Leeanne Mancari

No. No, no more. Thanks.

Phil Favro

So let’s cover this last one. This is a little bit of an entertaining case, and where you’ve got, again, like Judge Adams had mentioned, that last case, it being a pro se defendant, and you’ve got here another pro se party Tijerino, the plaintiff, and he doesn’t have counsel and he’s trying to handle his meet and confer obligations under Rule 37. Every court likely has a local rule that builds upon the federal rule requiring a good-faith effort to meet and confer. The meet and confer here was kind of entertaining. Imagine Leeanne representing one of her clients, and I coming in pro se, with no legal training, and offering concerns about her interrogatory responses and her responses to certain requests for admissions, as well as the request for production of documents. And as soon as Leeanne tells me something, I get out my AI engine and input it, voice-recording the information into the AI engine, getting a response, and then regurgitating that back to Leeanne. Tell me, Judge, how effective do you think that meet and confer would be?

Judge Adams

Probably not very effective at all. As you said, it was kind of interesting. It was a creative use of AI.

Phil Favro

Creative.

Judge Adams

I wonder if the outcome would’ve been different if he had used AI to help prepare his arguments in advance of the meet and confer, and then used it to summarize those arguments, presenting them himself during the meet and confer. I’m not sure if it would’ve made a difference, but that struck me. The other thing, as I said, was creative, and the other creative thing I saw recently was that there was a gentleman who appeared in court to present an oral argument, and when he got ready to present the oral argument, he pulled up a… he wanted to present by video, and the court allowed him to do that. He was present in the courtroom, and he pulled up an AI avatar that he had created. And this AI avatar was going to present its oral argument, but the judges had none of it, and they were like, ‘This is not going to happen.’ So creative is interesting. Regarding this particular plaintiff, I just Googled him, and he appears to be a frequent litigant in the Eastern District of Louisiana. That may have played into some of this role, as the court viewed him. However, this would not be an effective meet and confer.

Phil Favro

Yeah, agreed. Leanne, any reaction to this particular case?

Leeanne Mancari

Yeah, I mean, it’s kind of funny. I suppose we can be assured that lawyers’ jobs are not going to be completely replaced by AI, nor will we have a battle of the AI avatars in the courtroom, which is comforting. Yeah, I mean, I think Judge Adams’ point is a very interesting one about using it to prep, and I think perhaps that would be something that the court may be okay with. It may also be something that the court may never even be aware of if someone used AI to prepare. I know that, certainly, these days we are sometimes using AI to prepare, to throw in questions, or to present a fact pattern. What do you think the judge would ask? Or something like that to help us. However, I do not see AI as replacing a human in a meeting and conference, or as the obligation for that human to be educated themselves upon attending the meeting and conference. So, again, points for some creativity, but I suppose it reinforces the fact that humans are still needed.

Phil Favro

Thanks, everyone. Thanks. Let’s segue out of AI into ESI sanctions. And some might view this topic as, ‘Okay, we’ve heard it all before; somebody does something foolish or nefarious and they end up facing some sort of court punishment.’ These cases differ in that particular aspect. I think they’re instructive on multiple levels. And we’re going to get, let’s walk through three of these different cases. We don’t often hear from courts of appeal, whether state or federal, when it comes to discovery issues. And so when we do, it always gets our attention. I mean, for Judge Adams, of course, when the 8th Circuit speaks, that’s a huge issue for you because their opinions obviously have precedential value in your court. This is in the 7th Circuit; it’s on the other side of the river, but it’s no less important in terms of understanding issues with ephemeral messaging and the presentation of evidence in court, as well as a couple of other procedural matters. And, for background, Pable, the plaintiff, was essentially forced out of CTA. And if you don’t know what CTA is, you may be familiar with it if you ride the L train in Chicago, as CTA owns and operates those trains. And without going into all the details, Pable had violated some aspects of his employment. When he was there, he claimed to be a whistleblower trying to expose technological issues. CTA felt like he was someone who was a hacker and had caused the organization numerous problems. In connection with his departure, he exchanged a number of messages with his supervisor, who was also being forced out of the company, on Signal. Some were swiped and deleted, others were automatically deleted through the ephemeral or disappearing messages feature. And Judge Heather McShain, the magistrate judge in that case, issued a report and recommendation saying, Look, the deletion of these messages, really the best evidence there is of what was going on, the destruction has been done in bad faith. I would suggest that the district judge terminate the sanctions, strike her claims, and dismiss her case. And Judge Gettleman, the district judge, agreed with Judge McShain. This case then went up on appeal, and the 7th Circuit agreed as well. And some interesting issues arise from this, including ephemeral messaging and other practice concerns. Leeanne, just to kind of get us started, and then we’ll go and get Brian and Judge Adams here, what was your reaction to the 7th Circuit’s opinion in Pable, saying, Hey, look, we’re not going to allow you to revive your lawsuit. Probably the surest sign that your suit needs to be dismissed is the evolution of your testimony. It’s never a good thing when testimony evolves. It’s usually evidence of someone trying to make things up and hide things that went along with it. Leeanne, reactions on this?

Leeanne Mancari

Yeah. Yeah, so I mean, I think this was a very severe sanction, but one that we’ve seen when the court finds that there was bad intent there, which I think, with evolving testimony, like you just referred to, Phil, I think one could certainly find that. I think in terms of takeaways, what I really see here is a couple of things. I mean, just the importance of knowing about ephemeral messaging and if you’re using it, how you use it, I know there was some discussion in here about understanding whether it is deleted on both sides, right? So, saying, okay, well, if one person deletes it, is it also deleted on the other side? And somebody was alleging that the other person deleted it, so it self-exploded on both sides. That is, in fact, a hallmark of ephemeral messaging. For entities that allow the use of ephemeral messaging and for individuals using it, you should be aware of the settings you have enabled for those specific messages and know whether they’re self-destructing on both sides or just one. And like we said, ephemeral messaging, and I know you have a great paper on it, Phil, it really is self-exploding on both sides when one deletes. Another thing is ensuring that we are set up to preserve ephemeral messaging in the event that a legal hold is initiated. That’s not going to stop someone who wants to actually go and affirmatively delete the messages, as the court found here. But in other cases, I think having a process in place for understanding, okay, as soon as ephemeral messaging would be subject to a legal hold, that we either have some buffer of time period in place where we can instruct individuals to preserve it or there is some preservation of a couple days or an amount of time for those messages to exist before deleting so that we can catch them, or instructing individuals no longer to communicate via ephemeral messaging for issues related to legal hold. It reinforces the facts that we’ve been saying for some time about the knowledge and preservation of ephemeral messaging and shows that the courts are going to take this seriously. Ephemeral messaging is no longer a new or emerging technology. I mean, I think everybody is using it. We’re seeing it in cases quite a bit, and I think the tolerance for deleting it is very low, especially in situations where they find bad intent to delete the messages.

Phil Favro

Thanks, Leeanne. Thanks. I appreciate your comments. I think the importance of ephemeral messaging, as many organizations actually rely on it as a key communication tool, is to ensure the organization takes reasonable steps to address preservation. It will depend on one company and one situation from one to the next. It may be a little more challenging for larger enterprises and those with greater complexity to handle this than it is for a company with five employees. However, once the duty to preserve attaches, as you say, taking reasonable steps is certainly necessary. What they may be is going to depend on the circumstances involved. And, Brian, do you want to elaborate on any of these issues?

Brian Morrison

A few items from my end. Firstly, I am aware that the app in question in this case is Signal, and that is really quite… It’s the type of example that more and more companies are seeing now with off-channel communications. I think in general, there are specific uses, especially for larger companies where they’re dealing with other messaging applications, and it’s not as easy to just say, okay, we’re going to hold this data, we’re going to place a preservation on it, and we’re no longer concerned about it. This one, in particular, I think, was, as Leeanne had said, somewhat marred by the fact that there was conflicting testimony and shifting explanations. And so that complicates it, for sure. However, in general, there are significant challenges associated with preserving and collecting data on these other types of messaging applications, including the ongoing challenge of ensuring that people aren’t using them for relevant communications once an initial hold is placed. Another point I would like to make is that this case is particularly instructive in creating the right record in the trial court. And I say that because your chances of overturning sanctions on appeal are increasingly small. So, creating a bad record in this case, with the shifting explanations and not a sufficient explanation for why, at various points in time, text messages were deleted, it’s really not going to set you up for a good outcome, and you’re in the hands of the district court at that point. And so, for this, even though it was a very extreme sanction and not one that we see very often, there was probably a trust analysis on whether this person was being truthful, whether they were being candid, and whether they were completely presenting all the relevant procedural issues regarding text message preservation. But on appeal, you’re not going to be able to establish anything more, and you’re essentially stuck with that record. This is a really good example of how you really need to take the care to establish a good record in the trial court, especially around these other types of technologies where if there’s technical explanations around why something may or may not be available, you have to get it right the first time around to the extent possible, because if you’re shifting your explanations or you’re getting someone later in the proceedings, explaining something completely different, I think you’re up the creek without a paddle, honestly, especially with courts that may or may not necessarily be familiar with the issues around certain applications, like maybe they haven’t dealt with a ton of that before. That makes it even more important to clearly and openly explain those issues.

Phil Favro

Thanks, Brian. And I appreciate you bringing out the record issue. Judge, when this matter goes up on appeal, and it was a matter of first impression for the 7th Circuit, it said, ‘Look, the standard of review for these types of sanctions is clear error.’ And as one judge I’ve heard put it has said, ‘ Well, I may make an error, but I’ll be darned, I’m kind of cleaning up his language, if I’m going to make a clear error. ‘ And I’m sure that’s everyone’s mantra. And, Judge, neither Judge McShain nor Judge Gettleman made anything close to clear error here. That’s a really tough standard to overturn on appeal, wouldn’t you agree?

Judge Adams

Oh, absolutely. I think it’s a very tough standard, and that’s true. And when we get into all these discovery issues, these sanction issues, I think it’s really hard. And it goes back to what Brian and Leeanne said, educate the court about the technology at issue. Don’t assume that the court knows how it works. The other two takeaways I would just throw out related to this case, I think, this really highlights the importance of that Rule 26 conference that the parties had upfront, where you should be talking about what kind of ESI there is and what’s being done to preserve it so that the parties are getting that out on the front end and kind of know. And then, another thing that I think is instructive about this case is that it really highlights the basic analysis that courts have used for years when dealing with discovery issues and sanctions issues, regardless of the medium. We’re looking to see if there were reasonable steps taken, what they were, and then, secondly, what Brian and Leeanne both pointed out: are the explanations the party’s giving consistent? Are they shifting? I mean, that’s the same analysis we use on all of these issues. And the fact that we have a different medium at issue here, Signal, it’s not going to affect that analysis. I think that’s a good point for lawyers to consider.

Phil Favro

Thanks, Judge. And thanks, Brian and Leeanne. Maybe just one other closing note here. The court decided that as a matter of right, a party could recover its attorney’s fees under Rule 37(e)(1). In some courts, the majority rule is that they can do that. Some courts have said no, because it’s not a specifically articulated area of relief. It’s helpful from that standpoint to know that fees can be recovered. So, appreciate everybody’s comments on that. Let’s transition now to the FTC versus Match Group. And for our audience, I’m sure many of you are dealing with technologies that you use either from a governance standpoint to manage communications and the retention of certain information, or to handle discovery. Our next two cases involve M365, at least to some extent, and also Microsoft Purview eDiscovery. And in the FTC versus Match Group case, you have a party, the FTC, that’s seeking sanctions against Match Group because Match Group has turned over approximately 500 documents, either right after, right before, or mostly after the close of discovery. The parties had filed cross motions for summary judgment. The FTC had said, like all parties say when they get a late production, “Hey, these documents should have been produced years earlier, and these are the most important documents in the case.” I mean, you’ll always hear that, and if Leeanne or Brian and I were on the moving side, we would say the exact same thing, and if we were on the responding side, the moving parties would say that. It’s part of the ballgame. But the fact is that these documents were produced late, and the FTC sought a severe sanction. They wanted to be able to rely on the contents of the documents and comment on them at trial, but prevent the Match Group from doing so. And the court was not so willing to go down that path. The court said, Match Group, you’ve advanced a good faith reason as to why you couldn’t produce these documents. It’s very interesting. They had an archiving add-on that was advertised as being interoperable with Microsoft 365. Although they had used it in other instances and it had worked out okay, an error occurred, and they noticed that the productions from certain custodians were a little on the light side. And they went back and audited this, finding that a number of relevant documents had not been produced in discovery. As a result, they created these productions once they discovered this information. And the judge said, Look, your explanation makes sense. It’s credible. I won’t impose these severe sanctions on you. I will allow the FTC to take a couple of limited depositions. I’m going to impose a sanction under 16(f) because you have violated a scheduling order, but I will not impose the harsh sanctions the FTC is seeking here. However, it’s very interesting in terms of the technology; it should work, but it doesn’t. There’s a technical glitch. Should a party be punished for this? Brian, you’re routinely having to address issues related to the interplay between technology and legal matters, and you see others doing the same. What’s your reaction to the holding here in this particular case?

Brian Morrison

Yeah, thanks, Phil. Yeah, so I think that this was the appropriate outcome, honestly, and it gives me a little confidence in the way we handle issues internally on our discovery team, and I think it’s consistent with what other companies experience as well. The reality is you’re relying on a significant amount of software to do your job, and that’s just the reality of it. Placing preservation holds, processing the collections, and preparing the data for review and production are all key steps in the process. As a result, there are numerous points where a glitch can occur, leading to errors. And that’s just the reality of having such a significant amount of data at issue, as well as the larger cases. I think it was interesting, Phil, that you mentioned Match Group had produced almost 500 documents late, after discovery and just before the motion for summary judgment. However, the court also noted that over 300,000 documents were produced during the course of discovery. So, when you consider the absolute scope of the case and the relatively low amount, the very low number of documents produced late is actually quite good, considering there was a glitch. That said, it’s obviously important when you’re on the production side to ensure that if there is a glitch, you catch it as soon as possible. You’re being transparent about the glitch with the other side and with the court to the extent appropriate, especially if it’s past the close of fact discovery. That’s something really important as a practice pointer. I’ve seen it firsthand from being on the plaintiff side of litigation, where we often learned about glitches much later in the case than when they initially arose. And that, to me, is a problem where you’re not being transparent about it, because then we don’t know about it, and it can become a bigger issue than it would be. However, as long as you’re being transparent about it, I think that, in this case, Match Group approached it transparently. They produced the documents as soon as the glitch was resolved, and they took efforts to remedy the issue. They also noted that Match Group had already allowed the FTC to attach the new documents to a reply brief on their summary judgment motion, which is normally not allowed in the motion process. So it seemed like Match was kind of giving in on this. I think the FTC obviously just wanted a leg up at trial and the ability to use that type of evidence without any rebuttal evidence or rebuttal arguments. To me, it was appropriate not to impose that sanction because, again, it’s not something purposeful or intentional. Technology glitches happen. I think it was appropriate to allow for some additional, very limited two-and-a-half-hour depositions here just to kind of give the FTC an opportunity to pose on those documents. That makes sense, since Discovery had already closed, and there may have been, at least according to the FTC, some critical evidence within those 500 documents that were produced. But it is instructive on the right way to approach it. I think Match’s approach to this case helped its position significantly by being proactive and staying timely with the way it handled the issue after it was discovered as a glitch.

Phil Favro

They were well represented. That’s my reaction. You have good advocacy from their counsel. I agree. Leanne, and then, Judge, what are your reactions to these and to Brian’s comments?

Leeanne Mancari

Yeah, I mean, I completely echo Brian’s comments, and I want to say that what’s important here is that Match had a reasonable process in place, and I think that they can show that. And if there’s a reasonable thought-out process in place, but a mistake occurs, whether due to a technical error or human error, we also have to consider that sometimes mistakes happen. I think those things sometimes are just unavoidable, but if we can fall back on our process and show that our process is reasonable and there was just a mistake that can happen, and with what Brian said about being proactive and about being transparent, I think these things should not be fatal to the producing party if they happen. And a couple of extra depositions or something like that, limited in scope, does seem reasonable to me. And I have been in situations where this happens, and I find comfort in being able to fall back on the fact that we had a reasonable process in place, and a mistake occurred.

Phil Favro

Thanks, Leeanne. Judge?

Judge Adams

Just two quick things. I guess when I read the opinion, I was looking for the answer. Two questions I had, and I found them. The first of those is that this had not happened before, and I think that was critical. If this had been a situation where the company had used this tool before and had encountered the same issues related to it, I think the court might’ve been a little more skeptical. And another thing is that, at least from reading between the lines, I don’t think it was a situation where the documents that were not disclosed until later turned out to be the only key documents in the case. If that had been the case, I think it might’ve been something a little different from the court’s perspective. But those were the two things that struck me. I thought the company handled it fairly well, and I agree with you; it appears they had good lawyers who dealt with the issue as soon as they became aware of it and did their best to correct the issue.

Phil Favro

Thanks, Judge. Thanks. Let’s segue to our next case, Oakley versus MSG Networks. And Brian and Leeanne, Leeanne, you deal with clients a lot, I’m sure, who use M365. Have you encountered any challenges in managing Microsoft Purview discovery? Maybe you could discuss that just briefly.

Leeanne Mancari

Yeah. So I have not had challenges where it’s not working, but I have had situations where the opposite party thinks that one should have all of the versions of Purview that exist, and our company or our client just certainly does not have all of those versions, and certain licenses that exist to be able to collect various pieces of information. So I think that’s an issue. And then I think that the way Microsoft Purview interplays with other data sources that companies and entities have is really individualized. And I think that courts and other parties need to understand that. Because it works this way in one place does not mean it will work this way in another, due to the various proprietary data sources and the way things are interconnected and interplay. So yeah, I mean I think again here, looking at the case-specific situation, understanding the capabilities that Purview has with the client at hand and not just generally in the atmosphere and then looking at the interplay, I think these are all very important and I think falls nicely onto the last cases, is if there’s a reasonable process and things were set up reasonably and there’s a mistake that happens, you shouldn’t have adverse sanctions.

Brian Morrison

Yeah.

Phil Favro

Thanks, Leeanne. Go ahead, Brian.

Brian Morrison

Oh, yeah, I was just going to say, I think this case is interesting. Just as a little background on it, it was a dispute I’m sure a lot of people are aware of because it really made the news at the time where Charles Oakley, a basketball player, had been ejected from Madison Square Garden, and there was a lot of, I would say, bad blood between him and the owner of MSG, James Dolan, who was involved in the case, and he was a custodian. That was at issue in the case and came up in this discovery dispute. But it’s interesting here because I think on the one hand, of course, we were just talking about in this other case how glitches happen. Technology sometimes fails even in individual cases. On the other hand, this one felt like there was a lot of bad blood being litigated in the discovery dispute over missing text messages, data, and a notebook that James Dolan had apparently used to present at a news interview about the issues in this case. So there felt like there was a lot of bad blood here. And I think the reason that this became more elevated was that there was a suspicion on Oakley’s part that MSG was intentionally causing these glitches, which was making them essentially use them as an excuse, but really, there was more at play here, and they were trying to get rid of key evidence through technical glitches. So I think you kind of saw that come through in the arguments on the plaintiff side in this case, where he was essentially arguing that these were intentional, it’s not coincidental, et cetera, et cetera. However, the judge pointed out in this case that the court had identified a technical issue across its docket of cases, so it wasn’t just isolated to this particular case. They also pointed out that James Dolan, who was one of the key custodians here, didn’t have any missing data or emails in his collection. And so that kind of defeated the idea that this was some kind of conspiracy on MSG’s part to use a glitch to hide key evidence in the case. Certainly, you can sense it from reading the decision that there was a lot of heat in this case that was building up and bubbling over in the discovery dispute. However, it was interesting that it had covered the entire docket of MSG’s cases, not just this one. There was, in a way, a compelling argument on their side to say, ‘Hey, this is a genuine technical glitch, not something we tried to create as an argument in this case, particularly.’

Phil Favro

Agreed, Brian. And thanks, Leeanne, as well. And, Judge Adams, do you have any other comments about the Oakley case?

Judge Adams

No. I think Brian and Leeanne really covered the key points here.

Phil Favro

Yeah, thank you. Let’s take a look at just a couple of other items in our remaining time. So, just to highlight for your attention, we want to spotlight the DiDi Global case. There are probably about three or four different decisions here. We’ve spotlighted the decision for March 24th, but in all of these decisions, you’ve got a number of plaintiffs in the securities lawsuit, trying to get information from DiDi Global about their conversations with Chinese government officials about alleged cyber concerns that the government raised before DiDi’s initial public offering, information that apparently or allegedly was not disclosed before the public offering was made. After the disclosure, following the offering, the stock price plummeted, and people lost a significant amount of money. And what was interesting here, and Leeanne, I know we had talked about this, and you’re an expert in dealing with cross-border issues, was that the court actually, in some of the discovery disputes, recognized that the Chinese government has a key national interest in apparently protecting the disclosure of certain information. Typically, we don’t see that in cases like these. Anything strike you? Is there anything particularly striking for you about this case?

Leeanne Mancari

Yes, it’s very rare and occurs in a minority of cases where the US courts recognize a legitimate foreign interest. So, definitely taking a closer look here. I think that one of the significant factors influencing the court was the importance of evidence and the fact that the party had put forth a declaration that actually outlined the specific Chinese laws, including the data secrecy laws at play, which ones they were. They had a declaration saying that they would be in violation of those laws. And I think that that’s very significant, and the court in the opinion relied on that. I think that most of the time, we don’t see that, and we don’t see declarations submitted. And a lot of times, parties are using, oh, data privacy almost as a shield, like, oh, you cannot get discovery from us, GDPR, China secrecy laws, and they’re just raising it without actually providing the detailed evidence that the court would need to make a further assessment. I also think here there were additional facts at play that there were, and like you said, there were decisions on the 30(b)(6) deposition, there were decisions on the documents, and there were decisions on responses to interrogatories. With respect to the documents upholding the legitimate foreign interest, the court also found that other parties had produced redacted information. And so, some discovery was already out there. And so, the receiving party was not prejudiced by the fact that they couldn’t obtain any discovery from China at all. So there was information. I think those two factors had a significant influence on it here. And so I would say as a takeaway, if you are going to argue that data privacy laws are shielding you from producing discovery, putting forth a declaration on that is, I think, key and very important.

Phil Favro

Thanks, Leeanne. Judge, do you have any closing thoughts on the DiDi case?

Judge Adams

No, I would just echo what Leeanne said, because oftentimes, if we do get a declaration, it’s so thin, there’s just nothing to it. It’s just pure fluff, and there’s just not enough there for the court to hang its hat on. So I agree completely.

Phil Favro

And that practice of having a good fact declarant, or, in addition, if need be, an expert declarant, applies probably across the board to many of these cases we’ve talked about today. In the case involving Oakley and MSG, they had a terrific expert witness testifying on the issue of technology with M365; I think his last name was Potrone. We’re not touting his capabilities, but the court recognized how important that was, and Oakley didn’t introduce any expert testimony to counter that. And here, the fact declarant made all the difference. Leeanne, if you remember, one of the fact declarants in one of the initial motions, the judge really found, I think it was the general counsel’s declaration from DiDi to be very light, very thin, like you said, Judge Adams, and didn’t really pay attention to it as opposed to a subsequent declaration when the RFPs were at issue, where they articulated all the steps they had gone through with the government to identify responsive information, how the government reviewed the documents, approved the production of 37,000 and then held back or redacted several thousand more. And there’s a way to be able to establish an interest, and usually it’s through some sort of very well-developed fact declaration. Look, for our audience, we’re just about at the top of the hour. There were several issues that we did not get to today. You will receive a copy of the slides, which we recommend for your review, covering GDPR issues, other cross-border discovery issues under Section 1782, and several cyber preparedness and privacy-related topics. We commend these to you. You are welcome to message me afterwards with any questions you may have regarding these particular issues. We highlight in particular the first CCPA enforcement action being brought by the California Privacy Agency, which is tasked with enforcing the CCPA. Still to be determined what happens, but noteworthy that it actually took place. Additionally, we have included several articles in the materials, and if you have any questions about them, please don’t hesitate to contact us. And I think at this point, we’re going to finish things up. And I just want to say thank you, Judge Leanne, and Brian, for your time and attention. Thanks to our audience as well. And Mona, we’re going to turn the time back over to you.

Moderator
That wraps up our master class. Thank you for joining us today. Special thanks to our speakers, Judge Adams, Phil Favro, Leeanne Mancari, and Brian Morrison, for their time and efforts in preparing and delivering this session. As mentioned earlier, the session was recorded, and we’ll be sharing a copy of the recording and the slides with you in the coming days. Thank you once again, and enjoy the rest of your day.

Expert Panelists

+ Honorable Helen Adams

U.S. Magistrate Judge, S.D. Iowa

Helen C. Adams has served as a U.S. Magistrate Judge for the Southern District of Iowa since February 13, 2014.  She served as Chief U.S. Magistrate Judge from 2017 to 2024. Judge Adams received her undergraduate degree in Sociology from the University of Iowa in 1985 and her law degree from the University of Iowa in 1988, with high distinction and Order of the Coif.  She began her legal career as a law clerk to U.S. District Judge Harold D. Vietor in the Southern District of Iowa from 1988 to 1990. From 1990 to 2009, she practiced with the firm of Dickinson, Mackaman, Tyler & Hagen, where she served as President of the firm on two occasions.  In 2009, she joined the corporate legal department of Pioneer Hi-Bred International (now Corteva) as associate general counsel, an international agricultural company.

+ Philip Favro (Moderator)

Founder of Favro Law PLLC

Philip Favro is the founder of Favro Law PLLC, where he counsels clients on ESI, AI, and discovery issues and serves as a special master, mediator, and expert witness. Phil is nationally recognized for his expertise on ESI, discovery, and information governance, with courts acknowledging his credentials. See, e.g., Oakley v. MSG Networks, Inc., No. 17-CV-6903 (RJS), 2025 WL 2061665 (S.D.N.Y. July 23, 2025). This background makes Phil particularly well-suited to counsel clients and advise courts on information-related issues. As a special master, Phil is acclaimed for his collaborative approach, working with parties to find stipulated solutions to complex issues. For disputes that require adjudication, he is renowned for the clarity and vigor of his written dispositions, which are available on legal search engines.

+ Leeanne Mancari

Partner, Covington

Leeanne Mancari is co-chair of the firm’s eDiscovery, AI, and Information Governance Practice, and is a Chambers-ranked eDiscovery litigator and advisor. She guides clients on all aspects of national and international discovery, and frequently serves as lead eDiscovery counsel on large-scale and highly-publicized litigations, including multidistrict and other complex litigations. Leeanne strategically counsels clients on complex discovery issues to form defensible, efficient, and creative solutions for litigation and investigations. She routinely litigates discovery-related issues and appears in state and federal courts. Leveraging her deep knowledge of cutting-edge technology, including AI and machine learning, Leeanne formulates efficient and effective workflows for all phases of data preservation, collection, review, and production, and has expertise dealing with extraordinary volumes of documents and complex data sources.

About HaystackID® 

HaystackID® solves complex data challenges related to legal, compliance, regulatory, and cyber requirements. Core offerings include Global Advisory, Cybersecurity, Core Intelligence AI™, and ReviewRight® Global Managed Review, supported by its unified CoreFlex™ service interface. Recognized globally by industry leaders, including Chambers, Gartner, IDC, and Legaltech News, HaystackID helps corporations and legal practices manage data gravity, where information demands action, and workflow gravity, where critical requirements demand coordinated expertise, delivering innovative solutions with a continual focus on security, privacy, and integrity. Learn more at HaystackID.com.

Assisted by GAI and LLM technologies.

SOURCE: HaystackID