No. 10 C 6139
December 28, 2011
Aaron R. DeCamp, Bradley S. Fiorito, Diane Ilene Smason, John C. Hendrickson, Laurie S. Elkin, Equal Employment Opportunity Commission, Chicago, IL, for EEOC.
Camille Annette Olson, Nicole K. Peracke, Richard Burk Lapp, Suzanne Michele Courtheoux, Seyfarth Shaw L.L.P., Chicago, IL, for DHL Express.
*1 Presently before the Court is Plaintiff Equal Employment Opportunity Commission's (“EEOC”) motion to compel. (R. 79.) The Court presumes familiarity with the history and background of this litigation, and incorporates herein by reference the introductory sections of its Orders dated April 7, 2011 and December 27, 2011. (R. 51, 87.) As described below, the Court grants in part, and denies in part, the EEOC's motion to compel.
In January of 2011, the EEOC propounded its First Set of Interrogatories and Requests for Production of Documents on Defendant DHL Express (USA), Inc. (“DHL”). DHL responded, and on July 26, 2011, supplemented its responses to the EEOC's Requests for Production of Documents “by producing approximately 28,000 spreadsheets worth of information.” (R. 79, EEOC Mot. at 2.) The present motion to compel arises out of this supplemental production.
District courts have broad discretion over matters of discovery. See, e.g.,
Mohawk Indus., Inc. v. Carpenter, 558 U.S. ––––, 130 S.Ct. 599, 606, 175 L.Ed.2d 458 (2009) (citing Reise v. Bd. of Regents, 957 F.2d 293, 295 (7th Cir.1992) (noting that “almost all interlocutory appeals from discovery orders would end in affirmance” because “the district court possesses discretion, and review is deferential”)); Crawford–El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (observing that district courts have “broad discretion to tailor discovery narrowly and to dictate the sequence of discovery”); O'Leary v. Accretive Health, Inc., 657 F.3d 625, 636 (7th Cir.2011); Jenkins v. Bartlett, 487 F.3d 482, 488 (7th Cir.2007); Searls v. Glasser, 64 F.3d 1061, 1068 (7th Cir.1995) (“Because the district court is far better situated to pass on discovery matters, we review its discovery decisions for an abuse of discretion.”).
The parties agree that Rule 34 of the Federal Rules of Civil Procedure provides the applicable legal standard. Under the Rule:
Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:
(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii) A party need not produce the same electronically stored information in more than one form.
In the present motion, the EEOC contends that DHL “has produced an unmanageable amount of data in a manner that contravenes the Federal Rules.” (EEOC Mot. at 1.) According to the EEOC, DHL failed to produce the data, namely thousands of spreadsheets, either in the form in which they were “kept in the usual course of business,” or “organize and label them to correspond to the categories in the request,” in violation of Rule 34(b)(2)(E)(ii). Observing that it would be an “onerous burden” to “sift through thousands of unidentified spreadsheets,” many of which have non-descriptive file names such as “BOOK111905.xls,” or “Embedded Object 1,” the EEOC seeks an order requiring DHL to “(1) identify what each spreadsheet is and what information each spreadsheet is purported to contain; and (2) organize and label each spreadsheet to correspond to which of EEOC's document requests DHL purports each spreadsheet is responsive.” (Id.
at 2 & Ex. 6.)
*2 DHL responds that it produced the spreadsheets in their original native Excel format “as they were kept in the ordinary course of business, thereby fulfilling its obligations under the Federal Rules,” and otherwise provided sufficient information about the data. (R. 86, DHL Resp. at 2.) DHL explains that it “included with its production an index which includes, for each and every spreadsheet, metadata such as the original file name, the date created and last modified, and the document's author, along with other relevant information.” (Id.
at 2.) Furthermore, as the index reflects, 19,516 of the spreadsheets at issue “were attachments to e-mail messages” that DHL also produced. (Id.
at 4–5 & Ex. C.)
The EEOC disputes the veracity of DHL's representation that it produced the spreadsheets as they were kept in the usual course of DHL's business, reasoning that “DHL ceased its operations at the facilities at issue in this case.” (EEOC Mem. at 4 (citing In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 362 (N.D.Ill.2005) (holding that documents are no longer kept “in the usual course of business” when they relocated following the closing of a business); see also
Am. Int'l Spec. Lines Ins. Co. v. NWI–I, Inc., 240 F.R.D. 401, 410–11 (N.D.Ill.2007) (finding production deficient, where defendant produced records relating to a former business but “provided no evidence” about how the documents were or are kept in the usual course of business)).
The Court, however, need not resolve the factual questions surrounding the nature of DHL's “usual course of business,” because even if DHL's production was in technical compliance with Rule 34, portions of its production are inadequate. Matters of discovery, of course, “are within the sound discretion of the district court,” United States v. Jones, 188 F.3d 773, 779 (7th Cir.1999), and Rule 34 expressly authorizes district courts to impose production requirements different from those in the Rule. See
Fed.R.Civ.P. 34(b)(2)(E) (“Unless otherwise ... ordered by the court,
these procedures apply to producing documents or electronically stored information”) (emphasis added); Eli Lilly & Co. v. Wockhardt Ltd., No. 08–cv–1547, 2010 WL 2605855, at *4–5 (S.D.Ind. June 22, 2010). In this case, as explained below, additional guidance is appropriate.
On the one hand, DHL's production of approximately 28,500 spreadsheets, without apparent organization, coherent explanation, or specific responsiveness, raises serious concerns, particularly as against the EEOC, a government agency charged with civil rights enforcement. See, e.g.,
United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) (observing that liberal discovery under the federal rules seeks to make “trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent”); Eggleston v. Chicago Journeyman Plumbers' Local Union No. 130, 657 F.2d 890, 893 (7th Cir.1981) (noting the “public interests in the fair and efficient resolution of disputes”); Indianapolis Amusement Co. v. M.G.M. Distrib. Grp., 90 F.2d 732 (7th Cir.1937) (observing that discovery seeks “to prevent clumsy or wasteful litigation”); In re Sulfuric Acid Antitrust Litig., 231 F.R.D. at 363 (discussing information dump). Yet, on the other hand, DHL produced native data with an index containing file names and other information that it derived from metadata. DHL also identified the “type” of each spreadsheet, namely whether it was an attachment to email or otherwise, and additionally appears to have produced the relevant emails.
*3 The Court has reviewed the parties' briefs, together with the record, and is cognizant of the relevant burdens on the parties that any discovery order may impose. With these burdens in mind, and giving due regard to the policies underlying the Federal Rules, the Court orders DHL, by January 17, 2012, to supplement its July 26, 2011 document production, in good faith, with a(1) particularized list of the discovery request(s) to which each spreadsheet, or groups of spreadsheets, if appropriate, is responsive; and (2) to the extent a spreadsheet is not associated with an email, a cogent explanation as to the nature of that spreadsheet, or groups of spreadsheets, if appropriate. Additionally, the Court grants the EEOC leave to conduct a Rule 30(b)(6) deposition of DHL, in accordance with the Federal Rules, for the purpose of further discovering the nature and contents of the spreadsheets.
The Court grants in part, and denies in part, the EEOC's motion to compel.
End of Document.