Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of April 27-May 3. Here’s what’s happening.
On JD Supra, Kelly Twigger of Minerva26 writes about an emerging source of electronically stored information (ESI): the cookies and pixels on websites that are used to track Internet users. This tracking data became a contested topic in In re Meta Pixel Healthcare Litigation, where plaintiffs alleged they were harmed by using Meta Pixel on their healthcare portals because this supposedly allowed Meta to collect private information about their health issues.
While you may expect the plaintiffs to seek ESI about cookie tracking from Meta during the discovery process, Meta also sought cookie tracking data from the plaintiffs’ devices. Meta hoped to disprove the plaintiffs were tracked by Meta, presumably if no cookies or pixels from Meta were found on their web browsers and electronic devices. In a motion to compel production, Meta insisted it needed all cookies from every device and browser the named plaintiffs used to access their healthcare portals.
However, the judge limited discovery to third‑party cookies that actually “collected or shared health information” and ordered Meta to propose objective criteria for identifying the cookies it really needs. As Twigger writes, “even when data is relevant, courts will insist on a tight nexus between the request and the pleaded claims or defenses” and “collaborative sampling and phased discovery often trump all‑or‑nothing demands.” This shows us that parties are more likely to have their requests granted if the discovery sought is discrete and specific to the issues at hand rather than broad and all-encompassing.
In her article, Twigger also offers a practical playbook for litigators, including plaintiff- and defense-side tips for anticipating this form of ESI, finalizing a form of production, and documenting meet-and-confers, as well as other steps.
Other recent eDiscovery news and headlines:
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