Part 2 of 2: Romero v. Allstate Ins. co
A Special Master will save parties time and money spent in litigating discovery disputes to a court, while better achieving their objectives. For example, in Romero v. Allstate Ins. Co., 2010 U.S. Dist. LEXIS 111985 (E.D. Pa. Oct. 21, 2010), defendant Allstate Insurance Company opposed a motion to compel seeking to require Allstate to confer with the class action plaintiffs over electronic search terms. Romero is an employment class action involving alleged coercion to convert employees into independent contractors without their original benefits. Allstate, however, was not keen on disclosing to the class action plaintiffs past keyword search terms performed by Allstate in prior matters, or how those prior searches were performed, and so refused to confer. Romero at *38-39. Allstate contended its keyword search history constituted privileged attorney work-product, and therefore protected from disclosure. Allstate’s argument fell on deaf judicial ear, as the Romero court ruled against Allstate for the most part.
The Romero Court found that the Federal Rules of Civil Procedure, specifically Rule 26(f)’s meet and confer requirements, required Allstate to participate in the requested meet and confer and share the information sought. In this regard, while Rule 26(f) does not necessarily require the parties to adopt the most cost-effective or logical plan, it does require the parties to discuss “any issues about disclosure or discovery of [electronically stored information], including the form or forms in which it should be produced.” Fed. R. Civ. P. 26(f)(3)(C). The Romero court held that the broad scope of Rule 26(f) made it reasonable to require Allstate to meet and confer on search terms, date ranges and methodology. Romero, at *41-42. Thus, in a class action, as with other federal actions, Rule 26(f) requires that the parties “meet and confer” to develop a discovery plan. And, if the parties cannot or will not “play nice” in the electronic discovery “sandbox,” they will suffer the consequences.
Moreover, the necessity of arriving at a logical discovery plan early in the litigation is particularly pronounced in class actions, where custodians may number in the thousands and hundreds of thousands of computers, smart phones, and other devices are in play. Under these circumstances, failing to confer with opposing counsel early to identify custodians, likely sources of relevant electronically stored information, and the steps and costs required to access that information is the legal equivalent of seppuku (ritual suicide). Further, in a situation like those faced by the Romero parties, a Special Master appointed to oversee production may well have enabled the class action plaintiffs to avoid the need for the motion to compel, while allowing Allstate to protect its confidential information and avoid the court’s scorn. Specifically, the addition of a Special Master to help the parties develop a joint discovery plan would have allowed Allstate to provide its confidential information in camera to the Special Master. The Special Master could then incorporated the information in the joint plan, giving the class action plaintiffs what they needed while helping Allstate avoid embarrassment and wasted time.
** This is the last part in a two-part series which comprise an abridged version of the article “Dead on Arrival: E-Discovery and Class Actions,” written by Daniel Garrie and published in the Los Angeles Daily Journal. To request a PDF of the complete article, please contact Law & Forensics.