Jackson v. LinkedIn Corporation

Background

Jacqueline Jackson and LinkedIn Corporation asked the court to resolve disputes about their proposed protocol for discovery of electronically stored information, or ESI. The court decided the dispute without oral argument.

Preservation of ESI

The parties disagreed about the date from which they had to preserve potentially relevant ESI. The court agreed with LinkedIn that February 9, 2019, was an appropriate general starting point because it was one year before the earliest actionable conduct at issue in the case.

Jackson also sought discovery about whether LinkedIn designed the Insight Tag knowing or intending that it would collect, store, and transmit visitors’ personal information, including personal disability information from people visiting the DMV website in connection with disability placards. She identified the design and development period as around September 2016.

The court found that preserving all custodial and non-custodial sources dating back to September 1, 2016, would not be reasonable. It nevertheless found that information about LinkedIn’s knowledge and intent could be relevant and might exist in documents created when the Insight Tag was first made available. The parties therefore did not have to preserve ESI created or received before February 9, 2019, except that they had to confer about the specific custodial and non-custodial sources most likely to contain relevant, non-duplicative information about the Insight Tag’s purposes, the nature of information likely to be transmitted, and LinkedIn’s intent in making the Tag generally available. The court could later require earlier preservation for a reasonable period around September 2016, but only from those specific sources likely to contain relevant, non-duplicative information on that topic.

Search methodologies

Jackson proposed that a producing party provide hit reports showing the number of unique hits, hits with families, and total documents identified by each disclosed search term. LinkedIn objected that initial hit reports were unnecessary and burdensome, and proposed providing them only when reasonably available and reasonably limited in scope after the lawyers had discussed the search terms and a genuine dispute remained.

The court stated that hit reports generally reveal little about whether a search term effectively identifies relevant documents. The court found that hit reports could be useful when the parties are trying to resolve a dispute about a particular search term, but it did not require them as a routine matter for every search term when first proposed.

Jackson also proposed reserving the right to request review of a statistically valid random sample of documents that did not match any search term, known as a null-set sample. The court agreed that such a review could be useful when there was reason to believe the search terms had missed too many relevant documents. However, the court found no reason to include Jackson’s proposed right in the protocol because either party could make such a request when appropriate. The court therefore did not include Jackson’s proposed text for this provision.

Clawback procedures

The parties agreed that producing a document protected by attorney-client privilege or work-product protection, whether accidentally or otherwise, would not waive the protection. They disagreed about whether the receiving party could use the contents of a clawed-back document to challenge the producing party’s privilege claim.

The court held that Jackson’s proposed language was inconsistent with Federal Rule of Civil Procedure 26(b)(5). Under that rule, after receiving notice of a privilege or protection claim, the receiving party must promptly return, isolate, or destroy the specified information and must not use or disclose it until the claim is resolved, although the party may promptly present it to the court under seal. The court rejected Jackson’s proposed text for this provision and adopted LinkedIn’s proposal.

Metadata fields

The parties disputed whether ESI productions had to include four metadata fields: AttachNames, Attachments, FilePath, and NativeFileLink. The court said the parties’ submission did not provide enough information to resolve the dispute, including why Jackson wanted the fields and how LinkedIn’s concern about revealing privileged information could be addressed. The court required the parties to confer further and report why Jackson believed the fields should be produced and how the privilege concerns could be handled.

Further proceedings and disposition

The parties had to confer about the remaining disputes concerning the preservation period and the metadata fields and jointly report to the court by July 29, 2024. The report could not exceed 1,500 words total or 750 words per party. If the parties resolved their disagreements, they could instead submit an agreed request for entry of an ESI protocol. The court’s order resolved the specified discovery disputes but left the preservation exception and metadata dispute for further proceedings.