In the case In re StubHub Refund Litigation, the primary issue revolved around the defendant, StubHub’s motion to modify the Electronically Stored Information (ESI) Order. The existing ESI Order required that emails be produced with all parents and child records intact, including documents linked via hyperlinks as attachments.  The case delved into the technical complexities and practical challenges associated with managing ESI in litigation in the modern business world.

StubHub argued that producing hyperlinked documents with the parent email was technologically unfeasible for most documents despite significant efforts and the expertise of an e-discovery vendor. Plaintiffs countered that compliance was possible and presented expert declarations to support their position. However, the court sided with StubHub, acknowledging the technological limitations and granted the motion to modify the ESI Order, thereby eliminating the requirement to produce hyperlinked documents as attachments. Relevant to the decision was the Court’s acknowledgment that many of the hyperlinks do not work anymore and, even had StubHub’s vendor looked at native files in an attempt to link the hyperlinked document, that may have only been successful less than one-third of the time. The Court concluded that “a showing that a production requirement is impossible to comply with most of the time– and that is StubHub's argument – is a good reason to get rid of it.”

Regarding the plaintiffs' motion for sanctions, the court found that sanctions were not warranted for the ESI Order violation due to the impossibility of compliance with the Order. The court also dismissed the plaintiffs' claims of bad faith and unreasonable actions, finding only negligence on StubHub's part and denying sanctions under Rule 37(b)(2)(A) and Rule 26(g).

Finally, the court addressed StubHub's motion to strike portions of plaintiffs’ expert Paul McVoy's declaration regarding the feasibility of identifying hyperlinked documents and producing as complete families. While the court denied the motion to strike, it found McVoy's key arguments speculative and unconvincing. In conclusion, the court's rulings favored StubHub by modifying the ESI Order and denying the plaintiffs' sanctions motions, emphasizing the need to overcome technological barriers in ESI management, and encouraged the parties to move forward focusing on the merits of the case.

If your organization is seeking support with eDiscovery, our team has solutions to address all phases of the discovery process. CoDiscovr, we deliver client-focused, defensible, and scalable solutions using advanced technology and intelligent review practices to meet eDiscovery, document review, and information governance needs in a manner that reduces the risks and costs associated with electronically stored information (ESI). Reach out to CaitlinOyler, Counsel at CODISCOVR. Caitlin has over a decade of experience providing high-level advice to clients regarding all phases of the eDiscovery life cycle and managing high-profile document collections, reviews, and productions.

To read this case in its entirety, please click here.