Arconic Inc. v. Novelis Inc.
Arconic Inc. v. Novelis Inc.
2018 WL 5634008 (W.D. Pa. 2018)
August 3, 2018
Hochberg, Faith S., Special Master
Summary
The Special Master ordered both parties to preserve known forms of ESI, such as servers, computers, and USB drives, for each recipient of a litigation hold. Arconic was also ordered to image and collect potentially responsive documents from the top ten priority custodians' cell phones. Additionally, both parties were instructed to send a notification to all recipients of a litigation hold, warning them not to delete or modify any potentially relevant files, and to take measures to prevent any data subject to preservation from being deleted, discarded, or modified.
Additional Decisions
ARCONIC INC., Plaintiff,
v.
NOVELIS INC. and Novelis Corp., Defendants
v.
NOVELIS INC. and Novelis Corp., Defendants
CIVIL ACTION NO. 17-1434
United States District Court, W.D. Pennsylvania
Signed August 03, 2018
Counsel
Michael Songer, Pro Hac Vice, Shari Ross Lahlou, Pro Hac Vice, Julia R. Milewski, Pro Hac Vice, Mark Klapow, Pro Hac Vice, Michael H. Pine, Pro Hac Vice, Crowell & Moring LLP, Washington, DC, Patricia L. Dodge, Antoinette C. Oliver, Meyer, Unkovic & Scott LLP, Pittsburgh, PA, John E. Davis, Pro Hac Vice, Crowell & Moring LLP, New York, NY, for Plaintiff.Charles Kelly, Pro Hac Vice, Michael J. Joyce, Charles Kelly, Saul Ewing LLP, Pittsburgh, PA, Kate M. Saxton, Pro Hac Vice, Marissa A. Lalli, Pro Hac Vice, Mark A. Ford, Mark G. Matuschak, Pro Hac Vice, William F. Lee, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Mindy Sooter, Pro Hac Vice, Natalie Hanlon Leh, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, Denver, CO, Mitchell G. Stockwell, Pro Hac Vice, Charles A. Pannell, Pro Hac Vice, Jeffrey H. Fisher, Pro Hac Vice, Vaibhav P. Kadaba, Pro Hac Vice, Kilpatrick Townsend & Stockton LLP, Atlanta, GA, Joseph J. Yu, Pro Hac Vice, Wilmer Cutler Pickering Hale and Dorr LLP, New York, NY, for Defendants.
Hochberg, Faith S., Special Master
SPECIAL MASTER REPORT & RECOMMENDATION # 14: RE: ESI Order
Introduction
*1 During the June 12, 2018 telephonic conference, the parties raised that the Stipulated Order re: Discovery of Electronically Stored Information for Standard Litigation (“ESI Order”) had not yet been entered because one issue remained in dispute—Novelis’s proposed addition to the ESI Order regarding the scope of the parties' preservation obligations for repositories that contain potentially responsive documents. The Special Master requested that the parties resubmit the prior briefing, focusing on the issue still in dispute. On June 18, 2018, the parties exchanged materials explaining their positions. In brief, Arconic objects to the burden and large scope of the preservation obligations proposed by Novelis, whereas Novelis believes the measures are warranted in this large-scale case to ensure all relevant information is preserved. The Special Master heard oral argument during the July 13, 2018 hearing (“Hearing”).
For the reasons set forth below, the Special Master recommends: (i) that both parties preserve known forms of ESI (servers, computers, USB drives, etc.) for each recipient of a litigation hold in this matter and/or the derivation proceeding, (ii) that Arconic image and collect potentially responsive documents from the cell phones of the top ten priority custodians to test the feasibility of such a collection, without prejudice to Novelis' right to later seek to have the cell phones of other custodians also imaged and (iii) that both parties send a notification to all recipients of a litigation hold who are not on the top ten custodian list stating that recipients should not delete or modify any potentially relevant files on their phones, with clear instructions as to what documents and subjects are potentially relevant.
Discussion
The dispute arose from language Novelis proposed for the ESI protocol:
For purposes of preservation, the parties are not aware of a need for forensic images of servers, databases, computers, cell phones, and other electronic devices at this time. However, each party has conducted a reasonable investigation of potentially relevant documents under its possession, custody, or control, and has accordingly preserved such devices and locations, and nothing in this section shall prevent a party from seeking the searching and production of forensic images of such locations during discovery.[1]
(ESI Order ¶ 4(g).) In its letter brief, Arconic argued that this provision was unduly burdensome because, among other reasons, it would require Arconic (i) to interview dozens of personnel and keep track of every data source they have, (ii) to preserve data for anyone in possession of “potentially relevant documents” who may never even become document custodians, and (iii) to image cell phones, which constituted undue burden. (6/18/2018 Arconic Ltr. at 1.) Novelis asserted that it has undertaken these measures, and that ensuring preservation is important and proportionate to the needs of this $800 million dispute, and that a system to image cell phones is readily available commercially. (4/13/2018 Novelis Ltr. at 2-3.)
*2 As to the scope of people whose documents should be subject to preservation, Arconic objected generally to the breadth of Novelis’s proposal, and specifically to the phrasing that it should apply to anyone with “potentially relevant information.” (6/18/2018 Arconic Ltr. at 1.) The Special Master recommends that both parties preserve documents of anyone who received a litigation hold. If the parties deemed it reasonably likely that a recipient possessed relevant documents such that they received a hold, such documents should be preserved.
As to what sources of data should be subject to preservation, the Special Master recommends that email servers, computers, hard drives, discs and thumb drives should be preserved. Both parties should take steps to learn what repositories of potentially relevant documents recipients of the hold possess and to ensure that such sources are preserved. Such preservation should include measures to ensure that relevant documents are not deleted, destroyed or modified, such as imaging the repositories, or suspending email users' ability to delete emails from the email server.
As to cell phones, at the based upon the colloquy at the Hearing, Arconic shall undertake the search and collection of their “top ten” priority custodians' phones (excluding Arconic email, which both parties agree would be picked up by Arconic’s searches of its email server). (Hr'g Tr. at 82:7-83:17.) In light of the vast price tag that the parties contend is in play in this dispute, this burden is proportionately modest. If Novelis learns of an important custodian not on the top ten list, it may raise the need to collect that custodian’s cell phone. For other recipients of the litigation hold who are not on the top ten custodian list, both parties shall send a notification stating that recipients should not delete or modify any potentially relevant files on their phones, with clear instructions as to what documents and subjects are potentially relevant.
Conclusion
For the foregoing reasons, the Special Master recommends that the Court:
(1) Order both parties to preserve documents and communications of all kinds for all recipients of a litigation hold in this matter and/or the derivation proceeding;
(2) Order both parties to conduct a continuing reasonable investigation into what sources of potentially relevant documents exist and preserve any such repositories, including email servers, computers, hard drives, discs and USB drives;
(3) Order both parties to take measures to prevent any data subject to preservation from being deleted, discarded or modified (even inadvertently);
(4) Order Arconic to image and collect potentially responsive documents from the cell phones of the “top ten priority custodians,” as identified between the parties (excluding email stored on servers already being collected); and
(5) Order both parties to send a notification to other recipients of the litigation hold who are not on the top ten custodian list stating that recipients should not delete or modify any potentially relevant files on their phones, with clear instructions as to what documents and subjects are potentially relevant.
A proposed Form of Order will be filed by the Special Master as Report & Recommendation #15.
Arconic also objected to the addition of paragraph 4(h) but stated at the Hearing that it withdrew that objection on the understanding that its preservation obligations extend only to those who received a litigation hold. (Hr'g Tr. at 99:22-100:7.)