In the case In re StubHub Refund Litig., No. 20-md-02951-HSG (TSH) (N.D. Cal. April 25, 2023), California Magistrate Judge Thomas S. Hixson granted the plaintiffs’ motion to compel and ordered the defendant to produce the linked documents as agreed to in the ESI protocol or “produce for deposition within 14 days after the deadline to complete document production a Rule 30(b)(6) witness with full knowledge of everything StubHub and its vendors did in attempting to produce linked documents as attachments as required by the ESI Protocol”.

Case Discussion

In this case, Judge Hixson began his order by stating: “This order is about agreements. Without them, courts would have to rule on everything, and litigation would be even more expensive than it already is. Courts encourage parties to work out things like ESI protocols and other procedures governing discovery. We do this because we assume that the parties have some idea what they want to obtain in discovery, they know much better than the Court does what is possible or feasible, and they are best able to estimate the costs involved in whatever they agree to do. And when parties reach an agreement, we ordinarily need to hold them to it. Otherwise, if discovery agreements routinely turn out to be worthless and unenforceable, we deprive the parties of any reason to enter into them.”

Here, the parties agreed to, and the Court ordered, an ESI Protocol, which stated: “A document and all other documents in its attachment range, emails with attachments, and email or other documents together with any documents referenced by document stubs or via links to internal document sources within those emails or other documents all constitute family groups. If any member of a family group is produced, all members of that group must be also be produced or else logged as privileged, and no such member shall be withheld from production as a duplicate…Hyperlinked files must be produced as separate, attached documents.”

As Judge Hixson stated: “StubHub’s story feels incomplete and improvised. StubHub says it ran search terms on Google Drive and produced responsive documents to Plaintiffs. However, StubHub has not preserved the parent-child relationship as the ESI Protocol requires, so this means that Plaintiffs have a bunch of emails and a bunch of documents, but they can’t tell what document was linked to what email. Further, even though the joint discovery letter brief specifically also raises documents stored in Sharepoint and Tableau, StubHub has not searched for responsive documents in those repositories in an effort to find the linked documents.”

Possible reasons the defendant gave for the inability to produce linked documents included the possibility that the document was moved to a different place or email encryption methods had changed, rendering the links untraceable. Additional reasons given later included loss of personnel, a change in document systems, and the difficulty of versioning in Google documents. But the defendant acknowledged that for most of the links, it didn’t know the specific reason why it was unable to produce the linked document; it was just offering up possibilities. The defendant did offer to meet and confer with plaintiffs to try to find linked documents for any particular emails that plaintiffs considered important.

Judge’s Ruling

Comparing to another notable case with hyperlinked documents, Judge Hixson stated: “this is not a case like Nichols v. Noom, Inc., 2021 WL 948646 (S.D.N.Y. March 11, 2021), where the defendant refused to treat linked documents as attachments, and the court had to decide whether to order that or not. Here, StubHub did agree to do that, and both sides agree that with a handful of exceptions, it has not lived up to this part of the ESI Protocol. Neither has StubHub moved to modify that protocol.” (Hyperlink added).

Bringing the discussion back to the beginning, Judge Hixson stated: “Let’s get back to basics: Litigants should figure out what they are able to do before they enter into an agreement to do something. Litigants should live up to their agreements, especially when they are embodied in court orders, as the ESI Protocol is here. And if for some reason, a party learns that a so-ordered discovery agreement has become impossible to comply with, the party should promptly move for relief, with a good showing that despite its best efforts, compliance is impossible. In this case, StubHub has decided to do ‘none of the above.’ Its document production is in violation of the ESI Protocol, StubHub hasn’t done everything it could, it hasn’t moved for relief from the protocol, and it hasn’t settled on a clear story for why producing the linked documents can’t be done.”

Thus, he ruled: “The Court concludes the best option is to hold StubHub to its agreement, which Judge Gilliam so-ordered. If StubHub is unable to live up to its agreement, then within 14 days after the deadline to complete document production, StubHub must provide a Rule 30(b)(6) witness with full knowledge of everything StubHub and its vendors did in an attempt to produce linked documents as attachments. After that deposition, Plaintiffs can decide if they have a good sanctions motion or not. This order is without prejudice to StubHub moving to modify the ESI Protocol.”

So, what do you think? Do you agree with the Court ordering the defendant 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. Check out Kelly Twigger’s discussion of the case here!

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