In the case In re StubHub Refund Litig., No. 20-md-02951-HSG (TSH) (N.D. Cal. May 20, 2024), California Magistrate Judge Thomas S. Hixson granted the defendant’s Motion to Modify the ESI Order, removing references to hyperlinks within references to attachments and family groups. Judge Hixson also denied the plaintiffs’ motions for sanctions with respect to FRCP Rule 37(b)(2), inherent authority and FRCP Rule 26(g).

Case Discussion and Judge’s Ruling

In this case, Judge Hixson previously ordered the defendant to produce the linked documents as agreed to in the ESI protocol or produce a Rule 30(b)(6) deposition witness to describe everything that the defendant tried to do to produce them.

Judge Hixson provided the following analysis regarding the defendant’s Motion to Modify the ESI Order:

“The ESI Order states that it ‘may be modified … by the Court for good cause shown.’…The ESI Order states in Appendix 1 that when emails are produced, they should include parent and child files, with the parent-child relationship preserved, and child files are defined to include ‘hyperlinks to internal or nonpublic documents.’ Similarly, ‘family groups’ are defined to include ‘documents referenced by document stubs or via links to internal document sources.’…StubHub has demonstrated good cause to remove the requirement that hyperlinked documents should be produced as if they were attachments to emails. StubHub has made a persuasive evidentiary showing that despite having spent hundreds of hours trying to find linked documents and despite having retained an outside e-discovery vendor to assist with this effort, the hyperlink requirement is technologically impossible to fulfill most of the time.”

Continuing, he said: “Plaintiffs’ arguments that compliance with the hyperlink requirement is broadly possible consist of unpersuasive criticisms of StubHub’s evidence and two underwhelming expert declarations… Read closely, all [plaintiff expert Paul] McVoy’s declaration actually says is that it might have been possible for Epiq to find a hyperlinked document more than 17% of the time. Suppose McVoy is right. Suppose that if Epiq had run searches against StubHub’s native emails, it would have found the hyperlinked documents twice as often, or 34% of the time. The Court is not going to keep a production requirement in the ESI Order if two-thirds of the time it is impossible to comply with. The Court is not saying that the ESI Order should only contain requirements that can be complied with 100% of the time, of course. But a showing that a production requirement is impossible to comply with most of the time – and that is StubHub’s argument – is a good reason to get rid of it. McVoy’s declaration therefore does not meaningfully undermine StubHub’s motion.”

Judge Hixson also found plaintiff expert Douglas Forrest’s Declaration unpersuasive as well, stating: “The three references to ‘linked attachments,’ when the whole issue is that the linked-to documents are not attachments, leaves the Court wondering what this paragraph is talking about. If this paragraph is about hyperlinks, it’s conclusory and does not actually identify technology that would do this… In sum, Forrest’s declaration falls short of establishing that the hyperlink requirement in the ESI Order is broadly possible to comply with.” Judge Hixson added, in response to StubHub’s reply that “There is no out-of-the-box program that StubHub could have purchased and run, but did not”: “The Court thinks that the non-existence of commercially available software that can implement the hyperlink requirement tips strongly in StubHub’s favor.”

As a result, Judge Hixson granted the defendant’s Motion to Modify the ESI Order, striking the words “hyperlinks to internal or nonpublic documents” from the section titled “Email, Attachments, and Other Electronic Messages” and striking “and email or other documents together with any documents referenced by document stubs or via links to internal document sources within those emails” from the section titled “Family Groups”.

Judge Hixson also denied the plaintiffs’ requests for sanctions, as follows:

• Rule 37(b)(2): “A sanction under Rule 37(b)(2)(A) for violating an order has to be ‘just.’ Here, no sanction would be ‘just’ for violating the hyperlink requirement in the ESI Order because that requirement was in most cases impossible to comply with… Assuming for the sake of argument that StubHub’s February 16 document production violated the Amended Scheduling Order, no sanction would be ‘just’ (Rule 37(b)(2)(A)), and the award of expenses would be ‘unjust’ (Rule 37(b)(2(C)), because Plaintiffs have not been prejudiced… While [StubHub’s Rule 30(b)(6) witness on this subject, James] Wright’s testimony is not perfect, neither can the Court say that StubHub violated the Discovery Order. Plaintiffs’ criticisms of Wright’s testimony are mostly erroneous or concern a lack of knowledge about things outside of the scope of the ordered deposition.”
• Inherent Authority: “Plaintiffs argue that StubHub made false or misleading statements to the Court and to Plaintiffs in the course of litigating the hyperlink issue, StubHub failed to produce hyperlinked documents by the Court-ordered deadline, and StubHub failed to conduct a reasonable investigation of its ability to comply with the ESI Order. However, Plaintiffs have failed to show that StubHub’s conduct was anything worse than negligent.”
• Rule 26(g): “The stipulated ESI Order was the place where the parties stated how documents would be produced, and in it they explicitly reserved the right to modify the ESI Order. The manner of document production was not set forth in StubHub’s RFP responses, and the Court does not believe that either side ever thought the RFPs responses themselves were the source of any representations about how documents would be produced. Again, that subject was addressed in the ESI Order. Accordingly, the Court does not think StubHub’s RFP responses violated Rule 26(g).”

So, what do you think? Do you agree with the Court changing its mind from last year’s ruling and deciding that the defendant didn’t have to produce linked documents? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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