In Doe LS 340 v. Uber Techs., Inc., No. 23-md-03084-CRB (LJC) (N.D. Cal. Jan. 9, 2024), California Magistrate Judge Lisa J. Cisneros ordered Uber to produce litigation hold and source information regarding electronically stored information (ESI), granting plaintiffs’ request for information for basic information regarding litigation hold information and granting in part plaintiffs’ request for Uber to disclose information about the ESI sources it has preserved, but denying plaintiff’s request to suspend Uber’s company-wide document destruction policies.

Case Discussion

In this multi-district litigation (MDL) involving allegations that Uber failed to implement appropriate safety precautions to protect passengers which led to alleged incidents of sexual assault or harassment by drivers using the Uber application, the parties began to meet and confer to discuss the scope of Uber’s evidence preservation efforts as well as a proposed protective order. Uber declined to provide certain information regarding its preservation efforts until a protective order was entered.

Unable to come to an agreement as to the preservation issue, Plaintiffs filed their Motion on December 14, 2023, which was four days before the final Protective Order was issued, after which Uber provided some information concerning its preservation efforts. Plaintiffs requested that the Court order Uber to: (1) immediately produce litigation hold details, including the names, job titles, and dates of employment of the recipients of the hold notices, the dates of issue, and what litigation or claim the holds relate to, (2) immediately disclose information regarding ESI sources that it has preserved and when it preserved them, and (3) suspend Uber’s company-wide document destruction policies for a period of time to allow Plaintiffs to determine what, if any, relevant ESI has been destroyed.

The morning of the Court’s hearing on the Motion, Plaintiffs submitted a supplemental declaration indicating that Uber had produced a list of the job titles of approximately 15,700 past and current Uber employees subject to a legal hold, but no names. 10,200 of the employees were subject to legal holds not in connection with this litigation. Uber also confirmed that it had produced documents from proceeding with the California Judicial Council on Coordination Proceedings, which it claimed represents all the information Plaintiffs seek as to Uber’s ESI sources, including custodial and non-custodial sources. Plaintiffs had not yet reviewed the entire document production and asked that the Court order disclosure of the categories of ESI source information requested in their Motion, to the extent such information has not already been disclosed by Uber. Uber offered to provide a status report detailing its disclosures.

Judge’s Ruling

Judge Cisneros stated: “Uber…argues that the Rule 26(f) Checklist plainly states that parties may provide ‘the names and/or general job titles or descriptions of custodians for whom ESI will be preserved’… Uber’s position is not supported by the applicable law.”

In ordering Uber to produce litigation hold information, Judge Cisneros stated: “Here, the required disclosures include whether the litigation hold relates to a case or complaint involving allegations of sexual assault or sexual harassment. Uber urged that Plaintiffs are not entitled to such information. Plaintiffs, however, are entitled to information to evaluate whether Uber has met its preservation obligations. Given that a sexual assault or sexual harassment case or complaint has the potential to put Uber on notice of its duty to preserve potentially relevant evidence, it is warranted that Uber specify whether the litigation hold pertains to a sexual assault or sexual harassment case or complaint involving a driver using its application. This information is also necessary because, without it, it is not possible to tell whether Uber’s litigation holds from other actions are even related to the fulfillment of its preservation obligations in this MDL.”

As for the request for ESI sources, Judge Cisneros stated: “Courts routinely hold that parties are ‘entitled to know what kinds and categories of ESI’ a party has collected and preserved and what specific actions were undertaken to that end…Thus, the disclosure of information indicating non-custodial sources of the ESI is expected in the ordinary course of discovery.” As a result, Judge Cisneros granted in part “Plaintiffs’ request for Uber to disclose information about the ESI sources it has preserved, specifically, what sources of ESI it preserved, when each source was preserved, when each ESI source was used, what each source was used for, and the general types of information housed or contained in each source.”

As for the request that Uber suspend its company-wide document destruction policies, Judge Cisneros stated: “Uber, for its part, argues that such a request is overbroad. Uber points out that it conducts business that is unrelated to its rideshare application. Yet Plaintiffs seek a company-wide suspension of Uber’s policies that provide for the automatic deletion of data. Furthermore, Uber contends that there is no legal basis to support Plaintiffs’ request to completely suspend Uber’s document destruction policies…The Court agrees. Plaintiffs’ request is exceedingly broad.” So, she denied that request without prejudice.

So, what do you think? Should parties be required to produce litigation hold information for thousands of custodians? Please share any comments you might have or if you’d like to know more about a particular topic.

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