This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:
- A ruling from the U.S. District Court for the Eastern District of Michigan awarding Plaintiff sanctions against a Defendant for “refusing to engage in basic ESI discovery,” rejecting the Defendants’ unsubstantiated proportionality arguments, and finding that the Defendant had not met its obligation of competence with respect to discovery of electronically stored information (ESI)
- An order from the U.S. District Court for the Northern District of Illinois granting sanctions against Defendant for converting Excel files into PDF files before producing them, which rendered them not “reasonably usable” under Federal Rule of Civil Procedure 34, and ordering Defendant to produce the native Excel files
- A decision from the U.S. District Court for the Southern District of New York compelling Defendants to amend their categorical privilege log to include more particularized information so that Plaintiff could assess Defendants’ privilege claims or to produce a privilege log comprising the metadata for the withheld documents
- An opinion from the U.S. District Court for the Northern District of Illinois addressing various disputes regarding the parties’ negotiation of their ESI protocol, including the selection of custodians and data sources, the applicable timeframe for searching, and the allocation of discovery costs
1. A ruling from the Eastern District of Michigan awarding Plaintiff sanctions against a Defendant for “refusing to engage in basic ESI discovery,” rejecting the Defendants’ unsubstantiated proportionality arguments, and finding that the Defendant had not met its obligation of competence with respect to discovery of ESI.
In Waskul v. Washtenaw Cnty. Cmty. Mental Health, 2021 WL 5049154 (E.D. Mich. Oct. 31, 2021), U.S. Magistrate Judge Elizabeth A. Stafford ordered Washtenaw County Community Mental Health (WCCMH) to produce ESI and granted Plaintiffs sanctions under Federal Rule of Civil Procedure 37(a)(5)(C), in the process rejecting the argument that WCCMH was “justified in refusing to engage in basic ESI discovery, or to do so promptly, because they lack enough resources and manpower” and warning “attorneys appearing in federal court either to be competent and cooperative in discovery about electronically stored information (ESI), or to partner with someone with ESI expertise.”
Plaintiffs alleged claims under the Medicaid Act and the Americans with Disabilities Act regarding modifications to WCCMH’s budgeting methodology. Id. at *2. During discovery, Plaintiffs served interrogatories and requests for production on WCCMH. After issues emerged regarding these discovery requests, the court ordered the parties to meet and confer and then file joint lists of unresolved issues.
At that time, the court had also provided a number of directions to the parties, including that counsel “must make a reasonable inquiry about what responsive documents exist, how they are stored, and how they can be accessed.” The court also rejected WCCMH’s arguments that Plaintiffs or the court had to determine proportional ESI search terms or that none of the Plaintiffs’ requests were relevant or proportional. The court noted that the burden should be proportional to the needs of the case, but given the importance of some of the issues, the court would “expect there to be some burden.” Finally, the court had noted that general and boilerplate objections served by WCCMH violated Federal Rule of Civil Procedure 34 and interpreting case law. Id. at *3.
The parties later submitted the requested joint statement of unresolved issues, and Magistrate Judge Stafford addressed each issue in turn. She began with the scope of ESI searches, in particular with a request for production of documents about budgeting and reimbursement of services. The parties had agreed to five sets of search terms to test on WCCMH’s Barracuda email network, but only one set had produced successful results. While WCCMH agreed to produce documents that resulted from the one successful search, it refused to set a deadline to produce those documents. Id. at *4. In addition, Plaintiffs requested WCCMH produce 80 randomly selected emails, 20 from each of the other four test searches, but WCCMH refused.
In support of its refusal to produce the 80 requested documents and to set a deadline for producing the agreed documents, WCCMH relied on a “proportionality analysis” that included arguments that Plaintiffs made up only four of 5,000 recipients, that WCCMH lacked the budget to purchase the “prohibitively expensive” software necessary to comply with the Plaintiffs’ requests, that the availability of staff was constrained by COVID-19 protocols, that only one employee had access to the email system, and that conducting the test searches would be difficult and time-intensive.
However, Magistrate Judge Stafford rejected WCCMH’s proportionality argument as unsupported by Rule 26(b)(1), reasoning that WCCMH had a duty to cooperate in search term testing and that its refusal to set a deadline for production violated Rule 34. She found that the scope of discovery permitted under Rule 26(b)(1) did not support allowing WCCMH to abort testing what it conceded were relevant search terms. Magistrate Judge Stafford also noted that WCCMH did not dispute that it was capable of fulfilling Plaintiffs’ request to produce the 80 emails.
Turning to the proportionality analysis under Rule 26(b)(1), Magistrate Judge Stafford began with the first factor addressing the importance of the issues at stake. She noted that this case involved extremely vulnerable plaintiffs with severe developmental disabilities alleging they had been deprived of medically necessary services and that an action to vindicate a citizen’s civil rights is generally considered of high importance. She also noted that Plaintiffs cited evidence that a large majority of recipients like them were not receiving services without which they risked becoming isolated in their homes or institutionalized. She concluded by stating that it was “an understatement to say that the issues in this [case] are important.”
Magistrate Judge Stafford next found that other proportionality factors also weighed against WCCMH’s attempt to limit its responsibilities. For example, WCCMH had exclusive access to the requested emails, and Plaintiffs had an even more limited budget than WCCMH.
Magistrate Judge Stafford then analyzed the final proportionality factor, which was “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. at *5 (quoting Rule 26(b)(1)). She noted that under Rule 26, a party objecting that a request for production of documents is burdensome must submit affidavits or other evidence as substantiation and that “bald generalizations or a conclusory assertion” as to the burden does not sustain an objection. Magistrate Judge Stafford then stated that while WCCMH’s claim that it had not budgeted for litigation was credible, “accepting this argument would suggest that public governmental entities are exempt from normal discovery obligations.” Magistrate Judge Stafford stated that parties are expected to bear the expense of producing documents from their active email files. Moreover, despite the availability of HIPAA-compliant e-discovery platforms capable of handling volumes of email quickly and at reasonable cost, WCCMH explored no avenues for producing discovery other than using a single individual employed by Washtenaw County with other duties. Magistrate Judge Stafford stated that the “failure to pursue better methods to produce the discovery is inexcusable and borne out of a fundamental lack of experience in electronic discovery practices and rules."
Magistrate Judge Stafford then agreed with Plaintiffs’ counsel that “in 2021, WCCMH should not be permitted to evade its obligations to Plaintiffs and the Court by pretending that e-discovery is just too hard.” Magistrate Judge Stafford stated that Washtenaw County was one of the largest counties in Michigan and had the state’s third-highest median income. While WCCMH was a separate legal entity from the county, it used the county’s email network system and a county employee to collect the emails at issue. Magistrate Judge Stafford therefore rejected WCCMH’s argument that it lacked the resources to engage in e-discovery. She acknowledged that e-discovery can be difficult for inexperienced attorneys but stressed that inexperienced attorneys have an “ethical duty to become competent, associate themselves with attorneys who are, or to decline the representation. Id. (quoting DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 942 (N.D. Ill. 2021)).
Magistrate Judge Stafford illustrated defense counsel’s incompetence in this area by citing an incident in which defense counsel accused Plaintiffs of “erroneously” calling WCCMH’s employees “custodians,” without realizing that is what individuals with custody of relevant ESI are commonly called. Id. at *6. Magistrate Judge Stafford explained that attorneys are obligated to interview relevant custodians at the beginning of the litigation to learn the relevant facts regarding ESI and to identify, preserve, collect, and produce the relevant ESI. Magistrate Judge Stafford further stated that the requirement that attorneys interview custodians regarding ESI was not a new one, referring to a discussion in DR Distributors relating to rules from 2004 and 2006. Id. (citing DR Distributors, LLC, 513 F. Supp. 3d at 926). Magistrate Judge Stafford then pointed to a Model Order Relating to the Discovery of Electronically Stored Information, adopted by the Eastern District of Michigan in 2013 providing that in the event of a dispute regarding production of ESI, each party had to designate an e-discovery liaison. Id. at *6. This liaison could be an attorney, a third-party consultant, or an employee of the party and must “be, or have reasonable access to those who are, knowledgeable about the technical aspects of e-discovery, including electronic document storage, organization, and format issues, and relevant information retrieval technology, including search methodology.” Id. (quoting Principle 2.02, Model Order Relating to the Discovery of Electronically Stored Information (ESI), United States District Court for the Eastern District of Michigan (Sept. 20, 2013)).
Magistrate Judge Stafford stated that although Plaintiffs served discovery requests prior to the scheduling conference in March 2021, defense counsel had not considered basic methodologies for producing ESI until August 2021 or sought assistance from a knowledgeable e-discovery liaison. Id. at *6. In fact, defense counsel had “balked at cooperating with any electronic discovery processes,” saying that WCCMH did not have the time or capabilities to do so. Magistrate Judge Stafford stated that defense counsel also apparently did not know that as the responding party, WCCMH should have taken a commanding role in developing the strategy to produce its responsive emails, because “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Id. at *7 (quoting the Sedona Principles, Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, Principle 6 (2018)). Magistrate Judge Stafford stated that defense counsel instead left Plaintiffs’ counsel to determine methodologies to produce documents and referenced the example of Plaintiffs having supplied search terms for the test searches. Magistrate Judge Stafford stated that “[d]efense counsel cannot disown responsibility for designing proportional searches and search testing” and “should have associated with an electronic discovery specialist who could assist WCCMH in fulfilling its discovery obligations.”
Magistrate Judge Stafford continued that defense counsel’s refusal to commit to a deadline for producing emails resulting from the search contradicted Rule 34(b)(2)(B)’s requirement to produce requested documents within the period set forth in the request or another reasonable time period specified in response. Again, Magistrate Judge Stafford rejected WCCMH’s excuse that it lacked capacity to produce emails promptly, calling it an “uninformed” conclusion.
Magistrate Judge Stafford ordered WCCMH to produce documents resulting from the agreed-on search terms and the 80 emails Plaintiffs requested from the search testing. Id. at *10. Magistrate Judge Stafford also warned WCCMH and its counsel that “any violation of this order or more violations of the rules of discovery may result in sanctions under Rule 37 or the Court’s inherent authority and that the sanctions could include the imposition of more monetary sanctions or a default judgment against it.”
2. An order from the Northern District of Illinois granting sanctions against Defendant for converting Excel files into PDF files before producing them, which rendered them not “reasonably usable” under Federal Rule of Civil Procedure 34, and ordering Defendant to produce the native Excel files.
In Haywood v. Wexford Health Sources, Inc., 2021 WL 2254968 (N.D. Ill. June 3, 2021), U.S. Magistrate Judge Heather K. McShain granted Plaintiff’s motion for sanctions against Defendant, finding that Defendant’s conversion of native Excels into PDFs prior to production rendered them not “reasonably usable” under Federal Rule of Civil Procedure 34.
In this deliberate-indifference case under 42 U.S.C. §1983, Plaintiff, a state prisoner, alleged multiple counts of deliberate indifference to his serious mental illness and one count of First Amendment retaliation against Defendants, Wexford Health Sources (Wexford) and other individuals affiliated with the Illinois Department of Corrections. During discovery, Plaintiff requested the production of all documents related to his mental health, including out-of-cell trackers, crisis trackers, and records of evaluation and treatment by mental health providers. Plaintiff did not specify the format in which the data was to be produced, and there was no active order governing discovery in the matter. Id. at *1.
Defendant Wexford produced approximately 15,000 pages of documents in PDF format without first informing Plaintiff of the intended form of its production as required by Rule 34(b)(2)(D). Though the requested information was maintained by Defendant Wexford in Excel spreadsheet format, Wexford converted the files to PDF format prior to production to allow Wexford to Bates stamp the documents, sort their content, and redact certain health information of nonparty inmates. Plaintiff took issue with the production, arguing that (1) Wexford’s ESI production equated to a “[v]oluminous production of nonresponsive, irrelevant documents” that was not labeled or organized in any way that made it useful; (2) Wexford failed to comply with Federal Rule of Civil Procedure 34 because the ESI was not produced in either its native or a reasonably usable form; and (3) Wexford redacted an unnecessarily large volume of the contents of the production. In response to these complaints, Wexford supplemented its production with an index indicating which documents were responsive to which requests, but it refused to produce the documents in their original format. Id. at *2–*3. Plaintiff filed a motion for sanctions against Wexford requesting an order requiring Wexford to pay more than $60,000 in attorney’s fees for time spent reviewing the production and an order that Wexford produce all responsive documents in native format. Id. at *3.
Magistrate Judge McShain evaluated the parties’ arguments under Rule 34, which provides that a responding party may produce “any designated documents or electronically stored information ... stored in any medium from which information can be obtained either directly, or, if necessary, after translation by the responding party into a reasonably usable form.” Id. at *4 (quoting Fed. R. Civ. P. 34(a)(1)(A)).
Defendant Wexford argued that the conversion to PDF for the sake of redaction was necessary to comply with the Health Insurance Portability and Accountability Act (HIPAA) and Illinois law that required the protection of nonparty health information. Magistrate Judge McShain determined that neither HIPAA nor Illinois law required Defendant Wexford to convert the ESI from Excel to PDF in order to redact certain information. HIPAA permits disclosure of personal health information as long as the “covered entity receives satisfactory assurance ... from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order” that “prohibits the parties from using or disclosing the information for any purpose other than the litigation for which such information was requested” and requires destruction or return of the information following such proceeding. Id. at *5 (quoting 45 C.F.R. §164.512(e)(1)). Magistrate Judge McShain determined that the protective order in this case met those requirements. Furthermore, because this was a federal question case, the law of Illinois did not apply.
Magistrate Judge McShain then discussed whether the PDFs provided to Plaintiff were “reasonably usable.” There is no obligation to produce ESI in its native form; however, “the option to produce in a reasonably usable form does not mean that a responding party is free to convert [ESI] from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.” Id. at *7 (quoting Fed. R. Civ. P. 34(b) Advisory Committee’s Note on 2006 Amendment). “If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.” Id. (quoting Fed. R. Civ. P. 34(b) Advisory Committee’s Note on 2006 Amendment).
Magistrate Judge McShain found that the PDFs produced by Wexford were not reasonably usable. First, the conversion to PDF had resulted in several column headers that were unreadable or obscured, hundreds of pages of empty spreadsheets, and hundreds of pages consisting of the same entries on different pages. Second, the conversion from Excel to PDF had removed the ability to sort and organize the data included in the documents. For example, Plaintiff had noted to Wexford during a meet-and-confer that receiving the native documents in Excel format would allow Plaintiff to calculate and sort certain data. Magistrate Judge McShain agreed. “Excel spreadsheets do not exist simply to collect and store data. One of the unique strengths of Excel software is the ability to implement calculations and formulae that are not evident in a PDF version, so merely a PDF imprint of the surface information is not sufficient.” Id. at *8 (internal quotation omitted). By producing the Excel spreadsheets in PDF form, Wexford eliminated the ability to use the spreadsheets efficiently and, further, increased the burden on Plaintiff by requiring him to review more than 270,000 pages of information, large portions of which were redacted or illegible. Therefore, Wexford had “significantly degraded the functionality of the ESI.” The court found that Wexford did not produce the ESI in a reasonably usable format as required by Rule 34 and ordered Wexford to produce the spreadsheets in native Excel format. Id. at *9.
Regarding the attorney’s fees requested by Plaintiff, Magistrate Judge McShain explained that when a motion to compel is granted, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney’s fees.” Id. (quoting Fed. R. Civ. P. 37(a)(5)). However, she noted that a court may not award fees if the opposing party’s response was substantially justified, which is tested by whether there was a genuine dispute.
Magistrate Judge McShain determined that Wexford’s position was not substantially justified. Per the Advisory Committee’s Note on the 2006 Amendments, the responding party is required to specify in advance of production the format in which the requested information will be produced. Wexford’s failure to comply with this requirement had caused the dispute in this matter. Had Wexford notified Plaintiff that it intended to produce the Excel spreadsheets in PDF format, “it is reasonable to infer — based on counsel’s experience in other litigation with Wexford as well as plaintiff’s communications with Wexford shortly after the initial PDF production — that plaintiff would have objected and asked for the ESI in native Excel format.” Wexford even continued to produce documents in PDF format after it was aware of Plaintiff’s objections. Furthermore, Seventh Circuit case law makes clear that Wexford’s HIPAA-related rationale for converting the documents had no basis in law. Finally, there was no genuine dispute that the spreadsheets in PDF format are reasonably usable under Rule 34(b). Wexford’s briefing had not even addressed the two primary downfalls of the conversion: the lack of usability and functionality of the ESI and the illegibility of large portions of the spreadsheet. Id. at *9–*10.
Magistrate Judge McShain then determined appropriate hourly rates for each of the attorneys and the reasonable number of hours expended to review and organize the original, voluminous production by Wexford, to develop the deficiencies in the production, and to brief the motion for sanctions. Ultimately, she awarded Plaintiff $25,311.50 in attorney’s fees. Id. at *10–*15.
3. A decision from the Southern District of New York compelling Defendants to amend their categorical privilege log to include more particularized information so that Plaintiff could assess Defendants’ privilege claims or to produce a privilege log comprising the metadata for the withheld documents.
In U.S. Bank Nat’l Ass’n v. Triaxx Asset Mgmt. LLC, No. 18-CV-4044 (BCM), 2021 WL 1968325 (S.D.N.Y. Mar. 31, 2021), Magistrate Judge Barbara Moses of the Southern District of New York granted in part Plaintiff’s motion to compel Defendants to amend their categorical privilege log or produce a privilege log comprising the metadata for the withheld documents. Id. at *1.
In this debt enforcement litigation, Defendants produced a categorical privilege log to comply with their obligations under Federal Rule of Civil Procedure 26(b)(5)(A). The parties had agreed to the use of a categorical privilege log. Plaintiff, however, claimed that Defendants’ categorical privilege log was insufficient because it did “not provide information sufficient to allow [Plaintiff] to assess [Defendants’] claims of privilege.”
Defendants’ categorical privilege log covered over 12,500 withheld documents split among 21 categories, with each category providing information with the following columns: “Category Description,” “Subject(s) of Documents or Communications,” “Applicable Privileges or Immunities from Discovery,” “Number of Documents Withheld,” and “Number of Documents Redacted.”
In describing Defendants’ categorical log, Magistrate Judge Moses observed that there was little difference across the different columns between each category. Several of the category descriptions differed only by the names of the individuals and law firms listed. Id. at * 2. Similarly, the subject descriptions were mostly identical. Most described the subject as “Activist litigations brought on behalf of [Defendants], and related strategies.” Additionally, each category listed the same statement for the applicable privileged or immunities: “Attorney-client privilege; work product doctrine; common interest doctrine.” Magistrate Judge Moses observed that “[t]here is no attempt to indicate which privilege applies to which documents within any category.” Finally, the date range for each category was the same eight-year span. Id. at *4.
Magistrate Judge Moses began her analysis with Rule 26(b)(5)(A), which requires a withholding party to “describe the nature of the documents, communications, or tangible things not produced or disclosed ... in a manner that, without revealing information itself privileged or protected ... enable[s] other parties to assess the claim.” The privilege log must “establish the essential elements of the privilege” and “provide sufficient detail to permit a judgment as to whether the documents are at least potentially protected from disclosure.” Id. at *3 (internal quotations omitted).
Under the local rules for the Southern District of New York, parties can agree to provide a categorical log. Magistrate Judge Moses cautioned, however, that the “party receiving a categorical log ‘may object if the substantive information required by this rule has not been provided in a comprehensible form.’ ” Id. (quoting Local Civ. R. 26.2(c)). Here, she found several elements of Defendants’ categorical privilege log to be insufficient.
First, the date range for the categorical privilege log was implausible at best. Magistrate Judge Moses noted that it was “extremely unlikely that the documents in each of the 21 categories span the entire eight years.” Id. at *1. Certain categories included only a single withheld document, and others only a handful of documents, which made the date range claim particularly suspect. Id. at *3. Further, one category that encompassed the litigation at issue included a date range predating the litigation by seven years. Magistrate Judge Moses observed that the category likely contained “many documents that do not ‘relat[e] to the pending action’ (except in the sense that they are relevant to the issues in the pending action) and were not prepared in anticipation of it.” Id. (emphasis in original).
Another flaw involved Defendants’ treatment of the individuals appearing in the log. Unlike a traditional privilege log, Defendants did not include a column for senders, addressees, or recipients. Instead, Defendants included only a “ ‘non-exclusive’ list of recipients from numerous entities.” Id. at *2. This meant that some of the documents listed in the categories “may have been sent by or to individuals other than those listed in the description.” Additionally, Magistrate Judge Moses pointed out that some categories identified only one counsel, an in-house attorney who, according to Defendants, “acts in both a legal and a business capacity.” Id. at *3.
Despite her findings, Judge Moses explained that proportionality guided her decision: “[P]roportionality is an issue in evaluating privilege logs, just as it is with respect to other aspects of discovery.” Id. at *5. For the categories of documents dealing with events not at issue in the suit and that included outside counsel, Magistrate Judge Moses required only the provision of an accurate date range for the category and a complete list of senders, addressees, and other recipients of the communications within the category. For the work product category, Magistrate Judge Moses required provision of an accurate date range and a complete list of the individuals by and for whom the documents were prepared.
For the 1,359 documents directly relevant to the litigation, however, Magistrate Judge Moses ordered Defendants to produce a traditional privilege log, although she permitted the parties to stipulate to the provision of a metadata privilege log instead.
4. An opinion from the Northern District of Illinois addressing various disputes regarding the parties’ negotiation of their ESI protocol, including the selection of custodians and data sources, the applicable timeframe for searching, and the allocation of discovery costs.
In Cary v. Northeastern Illinois Regional Commuter Railroad Corp., 2021 WL 678872 (N.D. Ill. Feb. 22, 2021), U.S. Magistrate Judge Jeffrey T. Gilbert resolved a number of early discovery disputes, including addressing the number of custodians, denying Plaintiff’s request that her email inbox be produced without any search limitations, and requiring Defendant to identify sources of ESI in addition to email.
This discovery dispute came relatively early in the discovery process and largely concerned the contours of how discovery between the parties would proceed — which custodians’ data sets would be searched, what data sources would be used, and over what timeframes searches would be run. Magistrate Judge Gilbert stressed the need for “cooperation” between the parties, citing to the cooperation principles embodied the Northern District of Illinois’ Standing Order Relating to the Discovery of Electronically Stored Information. Id. at *1.
Magistrate Judge Gilbert first addressed the parties’ dispute regarding the number of custodians Defendant would use to collect and run searches for ESI. Id. at *1. Defendant proposed an “arbitrary limit of five or seven custodians,” asserting that it would be too burdensome to search more. In support of its burden argument, Defendant ran test searches on two potential custodians that returned approximately 18,000 hits. But Magistrate Judge Gilbert was skeptical of this burden argument because the parties had not agreed on complete ESI protocols or search terms, and Defendant’s numbers therefore told him “very little about the ultimate burden on Defendant from executing whatever ESI protocol the parties eventually agree upon for all custodians.” As such, he said that the parties could lessen the burden of each search by further discussing and fine tuning them. Magistrate Judge Gilbert rejected Defendant’s line-in-the-sand approach and ordered the parties to continue discussing the issue of custodians. He also set a backstop to their discussions: In the event that they could not negotiate and agree on custodians, he would order 27 custodians, based on a list Plaintiff submitted that he deemed “logical and reasonable.” Id. at *2.
Magistrate Judge Gilbert also rejected Plaintiff’s request to treat the Plaintiff’s documents differently than those of other custodians. Plaintiff requested that her entire email inbox be produced, rather than searched as would be done for other custodians. Magistrate Judge Gilbert described this “blanket request” as “on its face overbroad” as it would “very likely” include emails and documents not relevant to either the claims or defenses in the case.
Magistrate Judge Gilbert next rejected Defendant’s attempt to artificially limit the timeframe applied to searches. Id. at *3. Defendant argued that the relevant timeframe should be limited by (i) the statute of limitations; and (ii) the dates of Plaintiff’s employment, leading to a four-year period for the searches. On the other hand, Plaintiff wanted to run searches back to 2010 and through to the present day. Because “the parties present the Court with only a binary choice,” Magistrate Judge Gilbert did not side with either proposal. Rather, he encouraged the parties to continue to meet and confer to come up with an ESI protocol that was “proportional to the needs of the case.” He rejected Defendant’s assertion that no searches could be run for the time prior to the statute of limitations. He also was “not convinced” that Plaintiff’s attempt to go all the way back to 2010, or through to the present day, was “relevant.” He also was convinced that the search terms to be run were a key component of this discussion,” and so prior to the parties agreeing on terms, he did not believe the parties could make definite decisions on the time frame.
Magistrate Judge Gilbert also rejected Defendant’s assertion that only emails were relevant and that it should not have to disclose other possible data sources. Id. at *4. While Defendant contended that the company’s emails were the only relevant data source, Magistrate Judge Gilbert rejected this hardline stance as inconsistent with the cooperative approach to discovery his order required. He required Defendant to “provide Plaintiff with information necessary for her to calibrate her discovery requests so she can seek relevant information that is proportional to the needs of the case,” and this includes possible data sources other than email. Magistrate Judge Gilbert acknowledged the possibility that, at the end of the meet-and-confer process, email would be the only relevant data source, but he noted that Defendant’s refusal to identify any other source had halted the parties’ ability to have those discussions.
Defendant made numerous attempts to use productions from another litigation to supplement its discovery or support its defenses, all of which were rejected. Defendant asserted that this prior litigation was similar to Plaintiff’s case, so Defendant offered to reproduce all of its discovery from that case to reduce Plaintiff’s discovery demands. Id. at *2. Magistrate Judge Gilbert said that because “this is a different case, Plaintiff is entitled to discovery relevant to the claims and defenses in her case rather than those in another case” and rejected Defendant’s request. Id. (internal quotations omitted). Defendant had tendered the invoices it paid to produce that prior discovery as proof of burden, but Magistrate Judge Gilbert rejected this proof because he knew nothing about the efficiency and manner of the production in the prior litigation.
Magistrate Judge Gilbert also rejected Defendant’s proposal for the parties to split discovery costs. He first outlined the general rule that “in federal litigation, each party bears its own costs of [production].” He then highlighted some of the exceptions to that rule, “such as when a party requests information that is inaccessible or the discovery being sought is not proportional to the needs of the case.” Because the parties had not agreed on the ESI protocol, all of Defendant’s proof and estimates of its cost were not credited, and Magistrate Judge Gilbert did not see any basis to go against the traditional rule. However, he left open the possibility that costs could be split differently between the parties if Defendant submitted a credible reason for doing so in the future.
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