Written by Doug Austin, Editor of eDiscovery Today
I recently covered an interesting case that involved a dispute over whether a discovery request submitted within the deadline in one time zone and received past the deadline in another was considered a timely request. Island, LLC v. JBX PTY LTD was a trademark Trial and Appeal Board for the Patent and Trademark Office (PTO) case where the deadline to serve written discovery requests was on December 3, 2020, 30 days before discovery was set to close.
The Opposer (to the trademark request) served its discovery requests by email, from California, at 11:43 p.m. Pacific Time on December 3, 2020, which was 2:43 a.m. Eastern Time on December 4, 2020, where Applicant’s counsel was. Because of that, the Applicant served responses to each of Opposer’s written discovery requests on December 31st objecting to them on the basis that they were untimely.
The Opposer filed a motion to compel full responses to its first set of interrogatories and first set of document requests and the Board, finding the date of service to be based on when the document in question is submitted for transmission of service (not received), granted the request and ordered the Applicant to respond to the requests within 30 days. So, waiting until the last minute didn’t cost Opposer’s counsel its discovery responses in this case – but I’ll bet they don’t cut it so close in the future!
Time Zones in eDiscovery
When it comes to managing ESI evidence in eDiscovery, time zone is important as well and the time zone that you apply to your case may determine whether some of your evidence is deemed relevant or not. Consider this scenario where we’ll use the same dates and times as the example above:
- Relevant date period for the case is six months from June 4, 2020 through December 3, 2020.
- Potentially responsive email is sent from California, at 11:43 p.m. Pacific Time on December 3, 2020 and received in Iowa at 2:43 a.m. Eastern Time on December 4, 2020
If Pacific time is used as the time zone for the case, the email falls within the relevant date range. But if Eastern time is used as the time zone for the case, the email falls outside the relevant date range.
See the issue? It becomes an even more common issue when you’re talking about international custodians, and you have the potential for time zones to be several hours apart. And the time of year can also have an impact as well; for example, Arizona, the headquarters state for IPRO, is in Mountain Standard Time and doesn’t observe Daylight Savings Time.
So, an email between me (in Central time in Houston) and somebody from IPRO HQ could be one or two hours apart for them, depending on whether Houston is in Central Standard (CST) or Central Daylight Time (CDT).
How Dates and Times are Stored in Applications
Applications like Outlook are used to communicate with people all over the US or even the world. Yet, each of us will see the exact same email in the time zone in which we reside. This is because all Outlook messages are stored in Coordinated Universal Time (UTC), which is the primary time standard by which the world regulates clocks and time. It’s essentially the same time as Greenwich Mean Time (GMT), but GMT is a time zone, not a time standard like UTC.
When Outlook is installed, the time zone for the installed user is set up and Outlook uses that time zone to determine what time to use for emails. Houston is UTC-6 during CST and UTC-5 during CDT. Tempe, AZ is UTC-7 all year.
Why Does This Matter for eDiscovery?
Because ESI is stored in UTC, picking the time zone, and applying it to all the ESI within the case (regardless of where the custodian is located) is important when beginning to manage discovery for the case, for two reasons:
- Relevant Date Range: As discussed above, the time zone selected can determine whether certain ESI falls within or outside the relevant date range.
- Deduplication: It’s important to pick a time zone for the entire case because most eDiscovery processing solutions take the selected time zone and apply it to the stored UTC time of the evidence to hard code a date and time for that evidence. If different time zones were used in an eDiscovery project based on the location of the custodian, the same email found in collections for two different custodians would have different times (and possibly dates as well), causing them not to be deduplicated.
Time matters. It matters when a discovery request is submitted, and it matters even more for the evidence being discovered. It’s important to select the time zone at the beginning of discovery that can be used to “timestamp” the evidence, and it may be important to be on the same page with opposing counsel regarding the time zone being used.
Not being on the same page on time zone could lead to motion practice, like the Island, LLC case mentioned above. Nobody has time for that!
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