C.D. Cal. Magistrate Judge Ruling on CEO Custodian's Self-Collection

Last month, Magistrate Judge Paul L. Abrams issued a decision, Disney Enters. v. VidAngel Inc., No. CV 16-4109-AB (PLAx), 2019 U.S. Dist. LEXIS 62724 (C.D. Cal. Mar. 18, 2019), ruling on the Plaintiff's Ex Parte Application for an Order Compelling Standard ESI Search and Production from two custodians. The Plaintiffs contended that the Defendant's prior production (in response to an order for communications between VidAngel employees and legal counsel as to the legality of a disc-based service) was inadequate because documents were collected from only one custodian; that custodian

conducted his own search; made his own determination of which documents were privileged; and printed documents to PDF images which stripped them of metadata. They requested disclosure of the number of hits that came up for the search terms they requested.

The Defendant countered that the custodian's (its CEO) familiarity with computer technology made him better able to run document searches than anyone else, and noted that the PDF format had been used for past productions. The PDFs provided by the custodian were reviewed in Relativity by several attorneys who coded them responsive or non-responsive, and tagged some documents for further review if redactions were needed. VidAngel argued that its custodian only excluded search hits which were obviously not responsive, and further asserted that a search of a second custodian's emails (that of its general counsel) would be unnecessary, burdensome, and duplicative because all legal advice would have been received by the CEO.

Magistrate Judge Abrams granted the Plaintiffs' application in part and ordered the following:

1. The Defendant was to review the custodian's search results.

2. Provide email metadata - to; from; cc; subject and date fields.

3. Associate attachments with parent emails.

4. Submit a privilege log.

5. Produce additional documents as necessary

The CEO custodian is required to prepare a declaration stating the following:

1. That he was the recipient of all attorney communications regarding the legality of the disc-based service.

2. Any written communications about the legality of the disc-based service would have been email messages.

3. He used all of the plaintiffs' search terms.

4. Explain why some search hits were not were not loaded to a shared drive for review.

5. His practice for retaining emails from counsel.

6. That he did not delete any relevant emails exchanged with counsel.

If the CEO cannot make a declaration supporting each of these points, the search with the Plaintiffs' terms was to be re-run and all responsive documents produced within 10 days.