Shenwick v. Twitter, Inc., No. 16-cv-05314-JST (N.D. Cal. Feb. 7, 2018).

In this securities class action, the court considered several disputes involving the scope of discovery. It ultimately split its decision, ruling in each party’s favor for different issues involving custodians, private messages, and privilege. The court also commended the parties for their cooperation in narrowing the issues.

This case, filed on behalf of everyone who acquired Twitter stock in early 2015, alleges that Twitter misled investors. In a joint letter brief, the parties raised several disputed issues.

The first issue regarded the scope of appropriate custodians. The parties agreed to 25 custodians, but the plaintiffs also sought evidence from Jack Dorsey, the co-founder of Twitter. Dorsey was the Chair of the Board of Directors and then the CEO for Twitter during the class period. Dorsey ultimately “‘came clean’ about the true state of Twitter’s metrics,” ending the class period.

Twitter objected that searching this “apex” custodian would be premature and needlessly cumulative. It argued that any of Dorsey’s communications would have already been provided via other custodians.

The court disagreed. The fact that some responsive documents would also exist in other locations “is not sufficient to defeat a search” of a necessary custodian’s files. Thus, the court ordered Twitter to include Dorsey as a custodian.

The second dispute regarded private messages sent via Twitter’s “direct message” service. Twitter agreed to provide these messages only for two individually named defendants. The plaintiffs sought direct messages from other Twitter employees who were not named parties.

Twitter objected that the Stored Communications Act prohibited it from disclosing private messages from anyone not named as an individual defendant.

The court agreed. It noted that the plaintiffs were improperly trying to “merge Twitter and its individual custodians’ rights,” which remain distinct. The court could not “compel Twitter, a party in this litigation, to produce protected direct messages” of non-parties.

Third, the court rejected Twitter’s attempt to redact documents on relevance grounds. Twitter expressed concern that private information not directly related to the issues would be improperly disclosed.

The court held that Twitter could not make a “unilateral assessment of relevance” to protect sensitive information. Here, the parties had previously negotiated a protective order. Therefore, the proper remedy for concerns about disclosure would be a motion to amend that order.

Finally, the court turned to the plaintiffs’ attempt to obtain discovery about Twitter’s preservation efforts. Twitter objected that “all responsive documents” would be protected by attorney-client privilege. The court agreed that Twitter’s legal hold memos were protected as privileged.

However, the plaintiffs could still investigate any concerns about spoliation “through means other than forcing” Twitter to divulge privileged documents. For instance, the plaintiffs could inquire about what Twitter’s employees did after receiving legal hold notices. The court also reminded Twitter that it must provide a privilege log for any documents it withheld as privileged.

In closing, the court observed that both parties had “worked hard” to “narrow the issues of dispute.” It commended the parties for their efforts and for their “clear and cogent” presentation of the remaining issues.

Takeaways on Cooperating and Defining the Scope of Discovery

It’s a refreshing change to see a court commending parties for diligently meeting and conferring about discovery. Here, each side zealously presented its positions and the court clearly disagreed with several of those arguments. Nonetheless, the overall tone was far from contentious. Increase the odds of a similar outcome by understanding your data and completing early case assessment so that you can accurately scope your ediscovery efforts.

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