Electronic Discovery in Mass Tort Multidistrict Litigations

The ever-increasing use of electronic communications and storage systems, ranging from e-mail to word processing documents, to computerized databases, has greatly changed the nature of document preservation and production. As more and more people create, utilize and store electronic data in various formats, electronic discovery issues have become increasingly important in litigation. This is especially true in mass tort actions, which commonly involve large numbers of electronic documents. Accordingly, Multidistrict Litigations (MDLs) have begun to employ a variety of mechanisms to handle electronic discovery in mass tort actions, including case management orders, preservation orders and discovery protocols. Mass tort MDLs that recently issued such orders and protocols that deal specifically with electronic discovery include: Baycol — In re: Baycol Products Litigation, MDL No. 1431, Pretrial Order No. 6 (March 4, 2002) and No. 19 (May 9, 2002)(D. Minn.); phenylpropanolamine (PPA) — In re Phenylpropanolamine (PPA) Products Liability Litigation, MDL No. 1407, Case Management Order No. 3 (W.D. Wash., Jan. 29, 2002); Silzone heart valves — St. Jude Medical, Inc., Silzone Heart Valves Products Liability Litigation, 2002 WL 341019 (D. Minn., March 1, 2002); Propulsid — In re: Propulsid Products Liability Litigation, MDL 1355, Pretrial Order No. 10 (E.D. La., April 19, 2001); Bridgestone/Firestone tires — In re Bridgestone/Firestone, Inc. ATX, ATX II and Wilderness Tires Products Liability Litigation, MDL 1373, (S.D. Ind., March 15, 2001)(two orders); and Rezulin litigation — In re: Rezulin Products Liability Litigation, 2000 WL 1801846 (S.D.N.Y., Dec. 7, 2000).

Preservation of Electronic Data

One of the main goals of the MDL orders regarding electronic discovery is to preserve electronic data that may be relevant to the litigation. St. Jude at *1 (“While this litigation is pending, the parties shall preserve electronic documents in their possession, custody or control that contain information potentially relevant to the subject matter of this litigation”); In re Phenylpropanolamine (PPA), par. 2; In re Bridgestone/Firestone MDL electronic data order directed at Ford at *1 (“parties shall maintain … e-mail, word processing documents, spreadsheets, databases and other electronic data items which are likely to contain or lead to the discovery of information relevant to the facts at issue in this litigation”); In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at *3-4 (same); In re Propulsid, p.7 (defendants shall “maintain backup procedures designed to back up all network storage devices potentially containing discoverable electronic information … ; and … secure the hard drives (or mirror image backups of such hard drives of all computers … potentially containing discoverable electronic information that are not backed up in the ordinary course, before the reformatting, redeployment or disposal of such hard drives”).

In addition to containing language requiring preservation of electronic documents, the MDL orders also may specifically prohibit destruction of certain types of electronic data. For example, in St. Jude, the court not only ordered the preservation of potentially relevant electronic data, but also specifically prohibited routine erasures of potentially relevant computerized information. St. Jude, at *2; In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at *1 (“Firestone shall further suspend existing programs, if any, through which electronic mail is automatically deleted from its e-mail servers (eg, automatic deletion of mail older than 60 days or automatic deletion of mail when users' mailboxes exceed a certain size”); In re Propulsid, p. 7 (defendants “shall suspend the routine or automatic deletion of electronic e-mail or removal of unused electronic data and files”).

In contrast, in St. Jude, the court had previously issued Pretrial Order No. 1 (Aug. 21, 2001), which permitted the parties to engage in “routine erasures of computerized data pursuant to existing programs, but they shall 1) immediately notify opposing counsel about such programs and 2) preserve any printouts of such data.” In re: Baycol, Pretrial Order No.1 (Jan. 16, 2002), p.5, and No. 6 (March 4, 2002), p.2 (same). This is just one example how courts dealing with electronic discovery attempt to balance plaintiffs' interest in having relevant data preserved with defendants' interest in avoiding the burden and expenses of capturing, storing and maintaining large amounts of data, which may ultimately prove irrelevant.

Collection and Indexing of Electronic Documents

To aid the preservation of potentially relevant electronic documents in MDLs, courts have ordered that the parties take steps to identify and collect this data. For example, in the Baycol MDL, the court directed that copies of all future Baycol-related electronic documents be sent to an electronic mailbox for collection and preservation: “each Plaintiff and each corporate Defendant shall establish a dedicated electronic mailbox to receive copies, on a going forward basis, of all electronic documents relating to Baycol. The parties further agree to direct all of their employees to preserve Baycol-related documents, and to direct those employees (other than legal personnel) to send all future Baycol-related electronic documents to the Baycol mailbox.” In re: Baycol Products Litigation, Pretrial Order No. 6 (March 4, 2002).

MDLs have also acted to facilitate electronic discovery by ordering that defendants prepare an index of electronic documents. In re Propulsid, p.6 (“defendants shall produce a catalog or index of all backup and archival copies of electronic data”).

Requiring Employees to Search for and Preserve Discoverable Electronic Data

In order to ensure that corporate defendants actually retain discoverable electronic information, MDL orders have required the corporations to notify their employees to search their computers and other electronic storage devices to search for discoverable electronic information and to identify the location of such information and to take steps to preserve it. In re Bridgestone/Firestone (MDL electronic data order directed at Ford) at *2-3 (at least monthly, Ford must notify its employees who are likely to possess discoverable electronic information to identify all computers with hard drives likely to contain discoverable electronic information and to retain “data archived or backed up as part of any special backup, whether due to system upgrade, transition planning, system migration, disaster recovery planning, Y2K testing, or any other reason, if such data are likely to contain discoverable electronic information”); In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at *3-4 (at least semi-annually, Firestone must notify its employees who may possess discoverable electronic information that “if they possess discoverable electronic information, they are to report to the requesting party that they possess such information and take reasonable steps to preserve the same, without alteration, on a network storage device”). The orders also specified that employees shall be notified that they must maintain the technological capability, such as the necessary software, to retrieve and read potentially discoverable electronic information. Id.

MDLs have also required parties to use their best efforts to obtain certifications from their employees which state that the employees “have made a reasonable and duly diligent effort to determine if they have discoverable electronic evidence and, if they have such discoverable electronic information, they have so informed … counsel and taken reasonable steps to preserve the discoverable electronic information without alteration.” Id.; In re Propulsid, p.7 (“Defendants shall obtain certifications on behalf of all employees or independent contractors … that … devices and any backup tapes thereof maintained by each such employee or contractor have been searched for discoverable electronic information and any such data has been copied to a backed-up network storage device for the preservation of same”).

Newly Created Documents

In addition to ordering preservation of existing electronic documents, MDL orders also may require preservation of electronic documents that will be created after the MDL order is issued. This obligation to preserve “newly created documents” is often limited to certain party employees and limited to certain subjects, presumably in light of the lesser likelihood that an electronic document issued after the commencement of the litigation, as opposed to before, would be relevant to plaintiffs' claims. St. Jude at *1; In re Phenylpropanolamine (PPA), par. 3 (“The obligation to preserve documents (including but not limited to electronic data and e-mail) created subsequent to the effective date of this Order ('newly created documents') is limited to only those company employees who during the regular course of their employment would be responsible for or directly oversee others responsible for any of the following subjects and is limited to documents relating to any of the following subjects. …”).

Once again, the MDL orders seek to balance the interests of the parties, in this instance by explicitly stating that the obligation to preserve newly created electronic documents does not extend to 1) documents protected by attorney-client privilege or work-product doctrine, 2) draft documents and interim versions of documents if they would not normally be preserved in the ordinary course of business, and 3) multiple identical copies of a document. St. Jude at *1; In re Phenylpropanolamine (PPA), par. 3. (same); In re: Baycol Products Litigation, Pretrial Order Nos. 6 at p.2 (“persons may generate documents in the future without preserving dictation, drafts, interim versions or other temporary compilations of information if such documents would not have been preserved in the ordinary course of business”).

Backup of Server or Computer

One of the main methods to make sure that the parties preserve all potentially relevant electronic data is to require the parties to make backup tapes on a regular basis. In the In re Bridgestone/Firestone MDL, the court issued two orders regarding preservation of electronic data: one directed at Ford and the other directed at Firestone. Both of these orders require defendants to create certain backup tapes at specific regular intervals, such as monthly or quarterly, and to retain these backup tapes, as well as any backup tapes already in existence as of the date of the order. In re Bridgestone/Firestone (MDL electronic data order directed at Ford) at *1 (“These e-mail server, print/file server, and historical backup tapes shall be maintained by Ford during the pendency of this litigation. …”); In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at * 2-3.

In other MDLs, St. Jude and In re Phenylpropanolamine (PPA), the courts issued orders which stated that the retention of full backup of server or computer did not have to be performed more often than monthly to satisfy any obligation to maintain backups. St. Jude at *2; In re Phenylpropanolamine (PPA) at par. 3.

Similarly, courts in other mass tort MDLs have ordered that existing backup tapes and “snap shots” of electronic servers must be retained. In re: Baycol Products Litigation, Pretrial Order No. 6, pp. 1-2; In re Propulsid, p. 7-8. Both of these courts ordered that hard drives of all computers used by the parties or their employees [containing potentially discoverable electronic information], which are not backed up in the ordinary course of business, should be secured, or mirror-image copies should be made, before the “reformatting, redeployment or disposal of such hard drives.” Id.

Confidentiality Rights of Nonparties

In resolving electronic discovery issues between parties, mass tort MDLs have also had to weigh the rights of nonparties. In the In re Rezulin Pretrial Order No. 5, the court held that before a party could produce electronic databases involving Adverse Event Reports, the party must first redact the electronic databases so as not to disclose the patients' names, unless the patients were among the named plaintiffs in the actions in the MDLs. The court held that although plaintiffs' executive committee could consent to disclosure of names of patients who were among the named plaintiffs, “[t]hey may not, however, consent to the disclosure of the names of patients who may be members of a class, particularly if no class has been certified in this action. It would be unfair to individuals who have not even been notified that they are included in an alleged class to allow lawyers whom they have never retained and probably never heard of to consent on their behalf to the disclosure of personal medical information.” In re Rezulin at *1.

Agreements Between the Parties

In MDLs, courts have also permitted the parties to work out agreements between themselves regarding electronic discovery. Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super.) (parties in fen-phen MDL agreed to restoration of a sampling of backup computer tapes containing e-mail, and production of any responsive documents). Linnen actually was a wrongful death action, but the court discussed the electronic discovery agreement that was reached in the related MDL, In re: Diet Drugs Phentermine/Fenfluramine/Dextenfl-uramine) Products Liability Litigation, E.D. Pa. The Linnen court then held that all of the documents produced in accordance with that agreement would be made available to plaintiffs in the wrongful death action. Linnen, at *7.

Under that agreement of the parties, rather than having to restore thousands of backup e-mail tapes in response to document requests that would cost more than $1 million, defendant Wyeth-Ayerst Laboratories agreed to restore a sampling of tapes from each of the categories of tapes that were identified as possibly containing relevant materials. Id. at *5. Wyeth would bear the initial costs of restoring the sampling of tapes, but would have the right to seek reimbursement of up to $25,000 from the Plaintiffs' Management Committee (PMC). Id. Wyeth would then produce any responsive documents that turned up upon restoration of the tapes, but further restoration and production of the backup e-mail tapes would only be permitted upon good cause shown by the PMC. Id. at *5-6. If good cause is shown, then the court would consider the issue of who will pay the cost for the additional restoration and production. Id. at 5. In this way, the parties attempted to balance the costs of electronic discovery by agreement.

Protocols for Production of Electronic Documents

Mass tort MDLs have also issued protocols that specify how electronic documents should be produced — such as what data formats and search terms should be used for the production. In re: Baycol, Pretrial Order No. 19; In re Propulsid. In In re: Baycol, the court directed that electronic documents from electronic storage and electronic databases be produced in “multipage TIFF format with numbering unique to each page and in a format consistent with their electronic production of scanned hard-copy documents.” Id., par. 2. Defendants were also instructed to produce the following fields of objective coding, if defendants had chosen to code the documents before production: “Date; Type (eg, e-mail, word-processing, spreadsheet); Title, Author; Recipient(s); CC(s); Beginning and End Document (Bates numbers).” Id., par. 3. The court also directed that the electronic documents be produced without metadata, but that if plaintiffs later want metadata as to specific documents, the parties shall meet and try to agree to production and cost sharing of that metadata. Id., par. 4.

The Propulsid protocol is very detailed and contains specific requirements that detail how the electronic documents “must be produced with sufficient information to permit identification of the producing agent and business unit responsible for the production” and how they “must be produced in an intelligible format or together with a technical description of the system from which they were derived.” In re Propulsid, p. 11. The technical description must include the manufacturer's name and model number, the name and version of the operating system and the software used on the computer where the electronic documents were created and maintained, and the date when the data was first created and when it was most recently modified. Id. Moreover, the identification information regarding the unit responsible for production must include the name or identity of the specific server or computer system from which the information was originally created and the name or identity of the specific server or computer from which the backup was produced or the information copied. Id.

In addition, prior to the production of e-mails, MDLs have ordered defendants to provide plaintiffs with a list of search terms that it will use to identify potentially discoverable documents and plaintiffs shall then provide defendants with a list of any additional search terms to be utilized. In re: Baycol, par. 5; In re Propulsid, p.6 (“data will be prescreened for responsiveness utilizing search terms agreed upon by the parties. The parties shall cooperate to identify query terms designed to retrieve discoverable electronic data”). The parties will then meet and confer or otherwise cooperate as to resolving any dispute. Id.

Conclusion

As electronic discovery becomes more important in mass tort litigation, MDLs have begun to take steps to govern how such data should be preserved and produced. Pretrial orders and protocols have helped elucidate the parties' obligations and have attempted to fairly balance the inherent costs and burdens.

The ever-increasing use of electronic communications and storage systems, ranging from e-mail to word processing documents, to computerized databases, has greatly changed the nature of document preservation and production. As more and more people create, utilize and store electronic data in various formats, electronic discovery issues have become increasingly important in litigation. This is especially true in mass tort actions, which commonly involve large numbers of electronic documents. Accordingly, Multidistrict Litigations (MDLs) have begun to employ a variety of mechanisms to handle electronic discovery in mass tort actions, including case management orders, preservation orders and discovery protocols. Mass tort MDLs that recently issued such orders and protocols that deal specifically with electronic discovery include: Baycol — In re: Baycol Products Litigation, MDL No. 1431, Pretrial Order No. 6 (March 4, 2002) and No. 19 (May 9, 2002)(D. Minn.); phenylpropanolamine (PPA) — In re Phenylpropanolamine (PPA) Products Liability Litigation, MDL No. 1407, Case Management Order No. 3 (W.D. Wash., Jan. 29, 2002); Silzone heart valves — St. Jude Medical, Inc., Silzone Heart Valves Products Liability Litigation, 2002 WL 341019 (D. Minn., March 1, 2002); Propulsid — In re: Propulsid Products Liability Litigation, MDL 1355, Pretrial Order No. 10 (E.D. La., April 19, 2001); Bridgestone/Firestone tires — In re Bridgestone/Firestone, Inc. ATX, ATX II and Wilderness Tires Products Liability Litigation, MDL 1373, (S.D. Ind., March 15, 2001)(two orders); and Rezulin litigation — In re: Rezulin Products Liability Litigation, 2000 WL 1801846 (S.D.N.Y., Dec. 7, 2000).

Preservation of Electronic Data

One of the main goals of the MDL orders regarding electronic discovery is to preserve electronic data that may be relevant to the litigation. St. Jude at *1 (“While this litigation is pending, the parties shall preserve electronic documents in their possession, custody or control that contain information potentially relevant to the subject matter of this litigation”); In re Phenylpropanolamine (PPA), par. 2; In re Bridgestone/Firestone MDL electronic data order directed at Ford at *1 (“parties shall maintain … e-mail, word processing documents, spreadsheets, databases and other electronic data items which are likely to contain or lead to the discovery of information relevant to the facts at issue in this litigation”); In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at *3-4 (same); In re Propulsid, p.7 (defendants shall “maintain backup procedures designed to back up all network storage devices potentially containing discoverable electronic information … ; and … secure the hard drives (or mirror image backups of such hard drives of all computers … potentially containing discoverable electronic information that are not backed up in the ordinary course, before the reformatting, redeployment or disposal of such hard drives”).

In addition to containing language requiring preservation of electronic documents, the MDL orders also may specifically prohibit destruction of certain types of electronic data. For example, in St. Jude, the court not only ordered the preservation of potentially relevant electronic data, but also specifically prohibited routine erasures of potentially relevant computerized information. St. Jude, at *2; In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at *1 (“Firestone shall further suspend existing programs, if any, through which electronic mail is automatically deleted from its e-mail servers (eg, automatic deletion of mail older than 60 days or automatic deletion of mail when users' mailboxes exceed a certain size”); In re Propulsid, p. 7 (defendants “shall suspend the routine or automatic deletion of electronic e-mail or removal of unused electronic data and files”).

In contrast, in St. Jude, the court had previously issued Pretrial Order No. 1 (Aug. 21, 2001), which permitted the parties to engage in “routine erasures of computerized data pursuant to existing programs, but they shall 1) immediately notify opposing counsel about such programs and 2) preserve any printouts of such data.” In re: Baycol, Pretrial Order No.1 (Jan. 16, 2002), p.5, and No. 6 (March 4, 2002), p.2 (same). This is just one example how courts dealing with electronic discovery attempt to balance plaintiffs' interest in having relevant data preserved with defendants' interest in avoiding the burden and expenses of capturing, storing and maintaining large amounts of data, which may ultimately prove irrelevant.

Collection and Indexing of Electronic Documents

To aid the preservation of potentially relevant electronic documents in MDLs, courts have ordered that the parties take steps to identify and collect this data. For example, in the Baycol MDL, the court directed that copies of all future Baycol-related electronic documents be sent to an electronic mailbox for collection and preservation: “each Plaintiff and each corporate Defendant shall establish a dedicated electronic mailbox to receive copies, on a going forward basis, of all electronic documents relating to Baycol. The parties further agree to direct all of their employees to preserve Baycol-related documents, and to direct those employees (other than legal personnel) to send all future Baycol-related electronic documents to the Baycol mailbox.” In re: Baycol Products Litigation, Pretrial Order No. 6 (March 4, 2002).

MDLs have also acted to facilitate electronic discovery by ordering that defendants prepare an index of electronic documents. In re Propulsid, p.6 (“defendants shall produce a catalog or index of all backup and archival copies of electronic data”).

Requiring Employees to Search for and Preserve Discoverable Electronic Data

In order to ensure that corporate defendants actually retain discoverable electronic information, MDL orders have required the corporations to notify their employees to search their computers and other electronic storage devices to search for discoverable electronic information and to identify the location of such information and to take steps to preserve it. In re Bridgestone/Firestone (MDL electronic data order directed at Ford) at *2-3 (at least monthly, Ford must notify its employees who are likely to possess discoverable electronic information to identify all computers with hard drives likely to contain discoverable electronic information and to retain “data archived or backed up as part of any special backup, whether due to system upgrade, transition planning, system migration, disaster recovery planning, Y2K testing, or any other reason, if such data are likely to contain discoverable electronic information”); In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at *3-4 (at least semi-annually, Firestone must notify its employees who may possess discoverable electronic information that “if they possess discoverable electronic information, they are to report to the requesting party that they possess such information and take reasonable steps to preserve the same, without alteration, on a network storage device”). The orders also specified that employees shall be notified that they must maintain the technological capability, such as the necessary software, to retrieve and read potentially discoverable electronic information. Id.

MDLs have also required parties to use their best efforts to obtain certifications from their employees which state that the employees “have made a reasonable and duly diligent effort to determine if they have discoverable electronic evidence and, if they have such discoverable electronic information, they have so informed … counsel and taken reasonable steps to preserve the discoverable electronic information without alteration.” Id.; In re Propulsid, p.7 (“Defendants shall obtain certifications on behalf of all employees or independent contractors … that … devices and any backup tapes thereof maintained by each such employee or contractor have been searched for discoverable electronic information and any such data has been copied to a backed-up network storage device for the preservation of same”).

Newly Created Documents

In addition to ordering preservation of existing electronic documents, MDL orders also may require preservation of electronic documents that will be created after the MDL order is issued. This obligation to preserve “newly created documents” is often limited to certain party employees and limited to certain subjects, presumably in light of the lesser likelihood that an electronic document issued after the commencement of the litigation, as opposed to before, would be relevant to plaintiffs' claims. St. Jude at *1; In re Phenylpropanolamine (PPA), par. 3 (“The obligation to preserve documents (including but not limited to electronic data and e-mail) created subsequent to the effective date of this Order ('newly created documents') is limited to only those company employees who during the regular course of their employment would be responsible for or directly oversee others responsible for any of the following subjects and is limited to documents relating to any of the following subjects. …”).

Once again, the MDL orders seek to balance the interests of the parties, in this instance by explicitly stating that the obligation to preserve newly created electronic documents does not extend to 1) documents protected by attorney-client privilege or work-product doctrine, 2) draft documents and interim versions of documents if they would not normally be preserved in the ordinary course of business, and 3) multiple identical copies of a document. St. Jude at *1; In re Phenylpropanolamine (PPA), par. 3. (same); In re: Baycol Products Litigation, Pretrial Order Nos. 6 at p.2 (“persons may generate documents in the future without preserving dictation, drafts, interim versions or other temporary compilations of information if such documents would not have been preserved in the ordinary course of business”).

Backup of Server or Computer

One of the main methods to make sure that the parties preserve all potentially relevant electronic data is to require the parties to make backup tapes on a regular basis. In the In re Bridgestone/Firestone MDL, the court issued two orders regarding preservation of electronic data: one directed at Ford and the other directed at Firestone. Both of these orders require defendants to create certain backup tapes at specific regular intervals, such as monthly or quarterly, and to retain these backup tapes, as well as any backup tapes already in existence as of the date of the order. In re Bridgestone/Firestone (MDL electronic data order directed at Ford) at *1 (“These e-mail server, print/file server, and historical backup tapes shall be maintained by Ford during the pendency of this litigation. …”); In re Bridgestone/Firestone (MDL electronic data order directed at Firestone) at * 2-3.

In other MDLs, St. Jude and In re Phenylpropanolamine (PPA), the courts issued orders which stated that the retention of full backup of server or computer did not have to be performed more often than monthly to satisfy any obligation to maintain backups. St. Jude at *2; In re Phenylpropanolamine (PPA) at par. 3.

Similarly, courts in other mass tort MDLs have ordered that existing backup tapes and “snap shots” of electronic servers must be retained. In re: Baycol Products Litigation, Pretrial Order No. 6, pp. 1-2; In re Propulsid, p. 7-8. Both of these courts ordered that hard drives of all computers used by the parties or their employees [containing potentially discoverable electronic information], which are not backed up in the ordinary course of business, should be secured, or mirror-image copies should be made, before the “reformatting, redeployment or disposal of such hard drives.” Id.

Confidentiality Rights of Nonparties

In resolving electronic discovery issues between parties, mass tort MDLs have also had to weigh the rights of nonparties. In the In re Rezulin Pretrial Order No. 5, the court held that before a party could produce electronic databases involving Adverse Event Reports, the party must first redact the electronic databases so as not to disclose the patients' names, unless the patients were among the named plaintiffs in the actions in the MDLs. The court held that although plaintiffs' executive committee could consent to disclosure of names of patients who were among the named plaintiffs, “[t]hey may not, however, consent to the disclosure of the names of patients who may be members of a class, particularly if no class has been certified in this action. It would be unfair to individuals who have not even been notified that they are included in an alleged class to allow lawyers whom they have never retained and probably never heard of to consent on their behalf to the disclosure of personal medical information.” In re Rezulin at *1.

Agreements Between the Parties

In MDLs, courts have also permitted the parties to work out agreements between themselves regarding electronic discovery. Linnen v. A.H. Robins Co., 1999 WL 462015 (Mass. Super.) (parties in fen-phen MDL agreed to restoration of a sampling of backup computer tapes containing e-mail, and production of any responsive documents). Linnen actually was a wrongful death action, but the court discussed the electronic discovery agreement that was reached in the related MDL, In re: Diet Drugs Phentermine/Fenfluramine/Dextenfl-uramine) Products Liability Litigation, E.D. Pa. The Linnen court then held that all of the documents produced in accordance with that agreement would be made available to plaintiffs in the wrongful death action. Linnen, at *7.

Under that agreement of the parties, rather than having to restore thousands of backup e-mail tapes in response to document requests that would cost more than $1 million, defendant Wyeth-Ayerst Laboratories agreed to restore a sampling of tapes from each of the categories of tapes that were identified as possibly containing relevant materials. Id. at *5. Wyeth would bear the initial costs of restoring the sampling of tapes, but would have the right to seek reimbursement of up to $25,000 from the Plaintiffs' Management Committee (PMC). Id. Wyeth would then produce any responsive documents that turned up upon restoration of the tapes, but further restoration and production of the backup e-mail tapes would only be permitted upon good cause shown by the PMC. Id. at *5-6. If good cause is shown, then the court would consider the issue of who will pay the cost for the additional restoration and production. Id. at 5. In this way, the parties attempted to balance the costs of electronic discovery by agreement.

Protocols for Production of Electronic Documents

Mass tort MDLs have also issued protocols that specify how electronic documents should be produced — such as what data formats and search terms should be used for the production. In re: Baycol, Pretrial Order No. 19; In re Propulsid. In In re: Baycol, the court directed that electronic documents from electronic storage and electronic databases be produced in “multipage TIFF format with numbering unique to each page and in a format consistent with their electronic production of scanned hard-copy documents.” Id., par. 2. Defendants were also instructed to produce the following fields of objective coding, if defendants had chosen to code the documents before production: “Date; Type (eg, e-mail, word-processing, spreadsheet); Title, Author; Recipient(s); CC(s); Beginning and End Document (Bates numbers).” Id., par. 3. The court also directed that the electronic documents be produced without metadata, but that if plaintiffs later want metadata as to specific documents, the parties shall meet and try to agree to production and cost sharing of that metadata. Id., par. 4.

The Propulsid protocol is very detailed and contains specific requirements that detail how the electronic documents “must be produced with sufficient information to permit identification of the producing agent and business unit responsible for the production” and how they “must be produced in an intelligible format or together with a technical description of the system from which they were derived.” In re Propulsid, p. 11. The technical description must include the manufacturer's name and model number, the name and version of the operating system and the software used on the computer where the electronic documents were created and maintained, and the date when the data was first created and when it was most recently modified. Id. Moreover, the identification information regarding the unit responsible for production must include the name or identity of the specific server or computer system from which the information was originally created and the name or identity of the specific server or computer from which the backup was produced or the information copied. Id.

In addition, prior to the production of e-mails, MDLs have ordered defendants to provide plaintiffs with a list of search terms that it will use to identify potentially discoverable documents and plaintiffs shall then provide defendants with a list of any additional search terms to be utilized. In re: Baycol, par. 5; In re Propulsid, p.6 (“data will be prescreened for responsiveness utilizing search terms agreed upon by the parties. The parties shall cooperate to identify query terms designed to retrieve discoverable electronic data”). The parties will then meet and confer or otherwise cooperate as to resolving any dispute. Id.

Conclusion

As electronic discovery becomes more important in mass tort litigation, MDLs have begun to take steps to govern how such data should be preserved and produced. Pretrial orders and protocols have helped elucidate the parties' obligations and have attempted to fairly balance the inherent costs and burdens.