Mehalchick, Karoline, United States Magistrate Judge
Court held that plaintiff was entitled to “first review” of ESI recovered by an independent forensic examination and that plaintiff must share the costs of the forensic examination with defendants up to $1,500. Court used the seven factor cost-sharing test established in Zubulake in determining how the parties would share the costs of the examination.
Plaintiff brought claims against defendants alleging unlawful and retaliatory discharge after plaintiff was absent under the Family and Medical Leave Act from December 1, 2011 to early January 2012. Upon his return, plaintiff was not restored to his previous position and was ultimately discharged on April 12, 2012. Defendants claim plaintiff was fired because of excessive absences while plaintiff claims his discharge was retaliation for taking FMLA leave.
The parties agreed to have a neutral third party conduct a forensic examination of plaintiff’s email account to recover lost emails. Upon recovery of the emails, defendants requested that plaintiff’s counsel’s name be used a privilege filter and then the remaining recovered emails be forwarded to defendants for review. Defendants argued that it needed the recovered emails for “first review” in order to meet discovery deadlines.
The court rejected this argument because of the possibility that defendants could still be forwarded both irrelevant and privileged emails, despite the use of privilege filters. Additionally, Rule 26 of the Federal Rules of Civil Procedure contemplates that the responding party will first have a chance to review documents for privilege and relevance upon receiving a request for production. To placate defendants’ fear of not meeting discovery deadlines, the court ordered the plaintiff to provide defendants with the username and password to his email account—presumably plaintiff will have removed irrelevant and privileged ESI by this time—by 12:00 p.m. on Thursday, May 22, 2014.
Finally, defendants requested that plaintiffs share equally in the costs of the forensic examination. Plaintiff responded that he should not have to share the costs because he did not request it. The court noted that neither party had indicated whether the data was “inaccessible,” so it conducted its analysis presuming the data was inaccessible. It then analyzed whether cost-shifting was appropriate under the seven factor test set forth in Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y.2003). Under the test, the court held that the parties should share equally the cost of restoring and searching plaintiff’s emails, but plaintiff was only required to contribute a maximum of $1,500.
v.
SOUTH CENTRAL EMERGENCY MEDICAL SERVICES, INC., et al., Defendants
Counsel
Solomon Z. Krevsky, Clark & Krevsky, LLC, Lemoyne, PA, for Plaintiff.Jeffrey L. Oster, Maureen E. Daley, Rawle & Henderson LLP, Philadelphia, PA, for Defendants.
MEMORANDUM
All handwritten, typewritten and/or electronic documents, correspondence, writings, notes, interviews, declarations, articles, transcripts, resumes, job postings, employment opportunities, recruiter communications, curriculum vitae, employment applications, references, letters of recommendation, background checks, compensation requirements, offers of employment, withdrawal of offers of employment, rejection of offers of employment, and/or other tangible or intangible items related to Richard Zeller.
The printout of gross and net pay does not disclose whether Langen is receiving any other benefits such as health insurance, retirement benefits, or flexible spending accounts ... The information provided to date also does not provide complete information about discipline, hours of employment, and days off due to sickness ... Given the lack of complete information, the Subpoena is not duplicative or unnecessary.