*1 On May 12, 2016, the Court ruled upon a number of discovery disputes that the parties had brought to the Court's attention. See Order, ECF No. 82 [hereinafter “May 12, 2016 Order”]. One of those disputes related to the Coca-Cola entity Defendants' choice of electronically-stored information (“ESI”) custodians. After Plaintiff Shane K. Enslin served his initial discovery requests, Defendants identified eight “key” custodians who they believed were likely to possess responsive ESI and conducted a search of their data (Defendants subsequently agreed to add two more custodians at Enslin's urging, bringing the total to ten).

Enslin was not satisfied with Defendants' choice of custodians, and he asked the Court to compel them to search the ESI of an additional thirty-eight individual custodians as well as the ESI in the custody of four departments and committees of The Coca-Cola Company. In the May 12, 2016 Order, the Court denied his request. Observing that a party who is asked to produce ESI is “best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing [its] own electronically stored information” and that a requesting party therefore bears the burden of “show [ing] that a responding party's production of ESI was inadequate and that additional efforts are warranted,” the Court concluded that Enslin had failed to carry that burden. See id. at 1 n.2.

Enslin now moves for reconsideration of that decision. Instead of the thirty-eight additional custodians (and four departments) he originally sought, he now focuses on only four specific custodians: Steven Cahillane, the former president of Coca-Cola Enterprises, Inc., Renee Guttman, the former chief information security officer of The Coca-Cola Company, Kimberly Keever, the former chief information security officer of Coca-Cola Enterprises, and Ed Steinike, the chief information officer of The Coca-Cola Company. Enslin argues that it was “a mistake of fact and a manifest injustice” to find that he had failed to make the necessary showing to justify an order compelling Defendants to search the ESI of these four additional custodians.

When a court issues an interlocutory order, such as the one that Enslin is challenging, the court has the authority to reconsider the order “when it is consonant with justice to do so.” United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973) (citing United States v. Bryson, 16 F.RD. 431, 435 (N.D. Cal. 1954), aff'd, 238 F.2d 657 (9th Cir. 1956)); Fed. R. Civ. P. 60(b) advisory committee's note to 1946 amendment (recognizing that interlocutory orders are “subject to the complete power of the court rendering them to afford such relief from them as justice requires”). However, “to preserve interest in finality inherent in judicial decision-making ... ‘[c]ourts tend to grant motions for reconsideration sparingly and only upon the grounds traditionally available under [Rule] 59(e).’ ” Bridges v. Colvin, 136 F. Supp. 3d 620, 629 (E.D. Pa. 2015) (quoting A&H Sportswear Co. v. Victoria's Secret Stores. Inc., No. 94-7408, 2001 WL 881718, at *1 (E.D. Pa. May 1, 2001) (Van Antwerpen, J.)) (citing In re Res. Am. Sec. Litig., No. 98-5446, 2000 WL 1053861, at *2 (E.D. Pa. July 26, 2000)). Accordingly, one of three grounds usually must be present to warrant reconsideration of an interlocutory order: “(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or prevent manifest injustice.” See Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (citing N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).

*2 No ground for reconsideration is present here. There has been no change of law, and Enslin does not cite to any new evidence not previously in his possession to show that Defendants have failed in their discovery obligations. Nor does he contend that the Court clearly erred as a matter of fact or law in determining that his previous briefing on this topic, and his counsel's presentation during the May 11, 2016 status conference, was insufficient to show that any of these additional custodians possess relevant, non-duplicative ESI that was not captured by Defendants' earlier search.[1] Instead, he devotes approximately five pages of his memorandum in support of his motion for reconsideration to laying out, in detail, evidence that he argues is sufficient to make that showing.[2] None of this information was mentioned in the briefing that he previously presented on this topic, and he does not suggest that any of this information is new evidence that was unavailable to him at the time.

Enslin suggests that the reason he was unable to present this information in his previous briefing is that the Court “[l]imit[ed] [him] to a one-page summary of the issue” in advance of the May 11, 2016 status conference.[3] However, he neglects to mention that his one-page letter was accompanied by fifty-four pages of exhibits, and among those exhibits was a separate three-page letter that he had previously sent to the Court concerning this same topic.[4] He also fails to mention the opportunity his counsel had to present further arguments on this topic during the May 11, 2016 status conference that the Court convened for the purpose of reviewing this and other discovery issues, which lasted for over an hour. Ample opportunity was made available to Enslin to cite to some evidence to show that Defendants' original search failed to capture relevant, non-cumulative information in the possession of these custodians. Enslin, however, did not do so.

Instead, Enslin appeared to have proceeded under the belief that he could justify an order compelling Defendants to search the ESI of these additional custodians simply by showing that each one had some relation to the events in question. In his letter to the Court, Enslin argued, in conclusory fashion, that the ESI of these additional custodians must be searched because each custodian was “knowledgeable” and possessed “relevant information about the facts and claims at issue”[5] As the Court explained in its May 12, 2016 Order, that was not sufficient to show that Defendants erred by failing to search those custodians' ESI. A requesting party must “be able to articulate a basis for the court to find that ESI in the possession of the additional custodians would be different from, and not simply duplicative of, information that the responding party has already produced.” See May 12, 2016 Order 1 n.2. Through this motion for reconsideration, Enslin appears to be seeking a chance to correct the deficiencies the Court pointed out in his earlier presentation. Motions for reconsideration, however, may not be used as vehicles to “revisit or raise new issues with the benefit of ‘the hindsight provided by the court's analysis,’ ” Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553, 586 (E.D. Pa. 2008) (quoting Marshak v. Treadwell, No. 95-3794, 2008 WL 413312, at *7 (D.N.J. Feb. 13, 2008)), nor may they be used “as a means to argue new facts or issues that inexcusably were not presented to the court in the matter previously decided,” id. (quoting Brambles USA, Inc. v. Blocker, 735 F. Supp. 1239, 1240 (D. Del. 1990)).

*3 Even if the Court were to consider Enslin's newly-presented evidence and arguments, he has still failed to make a sufficient showing for the Court to compel Defendants to search the ESI of these four additional custodians. Asking a court to compel a party to search the ESI of additional custodians is similar to asking a court to compel a party to undertake additional efforts to search for paper documents. In either case, the requesting party is second-guessing the responding party's representation that it conducted a reasonable inquiry for responsive information, and in either case, the burden appropriately lies with the requesting party to show that the responding party's search was inadequate. See Scott C. v. Bethlehem Area Sch. Dist., No. 00-642, 2002 WL 32349817, at *1 (E.D. Pa. July 23, 2002) (refusing to compel a party to conduct a further search for documents because the requesting party “ha[d] not pointed to any evidence” that the responding party had failed to conduct a reasonable search); The Sedona Conference, The Sedona Principles 43 (2007), http://thesedonaconference.org/publication/TheS̈edonaP̈rinciples (“The requesting party has the burden on a motion to compel to show that the responding party's steps to ... produce relevant electronically stored information were inadequate.”).[6] It must also be remembered that the Federal Rules of Civil Procedure require only a reasonable search for responsive information pursuant to a “reasonably comprehensive search strategy.” Treppel v. Biovail Corp., 233 F.R.D. 363, 374 (S.D.N.Y. 2006). “[T]here is no obligation on the part of a responding party to examine every scrap of paper in its potentially voluminous files,” id., and “[i]n an era where vast amounts of electronic information is available for review, ... [c]ourts cannot and do not expect that any party can meet a standard of perfection.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 461 (S.D.N.Y. 2010).

With respect to the files of Kimberly Keever, the former chief information security officer of Coca-Cola Enterprises, Enslin argues that her files must be searched to capture communications between her and Peter Anderton, the supervisor of the former Coca-Cola employee whose alleged theft of laptop computers gave rise to this action. Defendants, however, have represented that they have already gone straight to the source: they reviewed Anderton's ESI directly, along with the ESI of three other potentially relevant custodians, and determined that those four custodians either did not possess any relevant ESI or the information they did possess was likely to be duplicative of ESI collected from other custodians.[7] Defendants also took the additional step of reviewing the paper documents of those four custodians to search for responsive information.[8] Other than arguing that a search of her files would turn up conversations between her and Anderton, Enslin “submits that her file[s] contain non-duplicative confirmation” of a second-hand report that Keever harbored a belief that Defendants were unwilling to fund a particular software encryption tool, which could have been used to encrypt the laptops.[9] Enslin's speculation that Defendants' search failed to uncover that information is insufficient to show that they improperly excluded her as a custodian. See Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 428 (D.N.J. 2009) (“The notion that a document production is insufficient based on a belief that documents must exist simply is not enough to grant a motion to compel....”).

With respect to the files of Renee Guttman, the former chief information security officer of The Coca-Cola Company, and Ed Steinike, the chief information officer of The Coca-Cola Company, Enslin has not pointed to any evidence to suggest that a search of either of their ESI would produce responsive information that has not already been captured. Nor does he offer any suggestion of what responsive information a search of their ESI would uncover, or how that information would relate to any of the claims in this action. Rather, Enslin describes Guttman and Steinike's roles and responsibilities at The Coca-Cola Company, with the implication that they must be included as custodians by virtue of the fact that they occupied senior roles in the Company's information technology groups.[10] As the Court has explained, the fact that a person may have had some connection to the events in question does not automatically mean that such person must be included as an ESI custodian. See May 12, 2016 Order, at 1 n.2. To justify an order compelling a responding party to search the records of additional custodians, the requesting party “must demonstrate that the additional requested custodians would provide unique relevant information not already obtained.” Fort Worth Emps.' Ret. Fund v. J.P. Morgan Chase & Co., 297 F.R.D. 99, 107-08 (S.D.N.Y. 2013) (refusing to compel a party to search the records of a number of additional custodians despite the fact that each had some connection to the events of the case).[11]

*4 Finally, with respect to the files of Steven Cahillane, the former president of Coca-Cola Enterprises, Inc., Enslin has not pointed to any basis to believe that Defendants' search overlooked ESI in his possession, other than to suggest that he must be added as a custodian because the Court declined to grant Defendants' request to prevent Enslin from deposing him.

Also unavailing is Enslin's contention that these four individuals must be added as custodians because Enslin has chosen to depose them. Enslin's subjective belief that the testimony of these four individuals is sufficiently important to his claims to warrant the time and expense of taking their depositions sheds no light on whether they are in possession of unique, responsive ESI that Defendants improperly failed to capture through their search methodology.

Enslin also fails to address the other basis for the Court's May 12, 2016 decision: the burden of requiring Defendants to expand their search to additional custodians appears to outweigh its likely benefit. See May 12, 2016 Order, at 1 n.2; Fed. R. Civ. P. 26(b)(1) (directing courts to consider whether “the burden or expense of the proposed discovery outweighs its likely benefit”). In their previous briefing on this topic, Defendants quantified the burden that responding to Enslin's discovery requests has already imposed on them and the additional burden that they would have to bear to expand their search to additional custodians.[12] Defendants also took the step of sampling the ESI of one of the thirty-eight additional custodians that Enslin had proposed in his previous briefing, and they found that each responsive document that existed in that custodian's ESI had already been captured by their previous search. See May 12, 2016 Order, at 1 n.2. Based on those representations, the Court found that the likely benefit of requiring Defendants to add additional custodians to their search would be outweighed by the burden that the search would impose. Id. In his motion for reconsideration, Enslin has not addressed that finding.[13]

*5 Accordingly, this 8th day of June, 2016, Plaintiff's Motion for Reconsideration of Discovery Custodians, ECF No. 83, is DENIED.

As set forth in Plaintiff's previous submissions,[1] there remains a discovery dispute with the Coca-Cola Defendants (“Coke”) concerning their refusal to expand their list of relevant custodians from whom to produce relevant documents in response to Plaintiff's requests served in 2015. On February 10, 2016, this Court ordered Coke to meet and confer with Plaintiff about “a list of most likely custodians” within 15 days. Dkt. No. 54. The parties conferred on February 22, 2016. Despite Coke's failure to timely produce organization charts from which to determine relevant custodians (the charts were not produced until March 8), Plaintiff proposed a list of additional custodians. Coke refused to add any custodian to its list of 8 “Key Custodians”, including Defendant Rogers and his accomplice, Felicia Snead. The matter was then raised with the Court on February 24, and the Court granted leave to raise the matter by letter motion in its March 1, 2016 discovery Order (Dkt. No. 59, ¶ 4).

Coke has failed to comply with the Court's February 10 Order. Its malfeasance is demonstrated by its subsequent agreement to add Rogers and Snead as custodians only after it was raised at the February 24 conference. However, Coke's failure to identify relevant custodians extends beyond these 2 patently relevant people. Coke has failed to include the following individuals with relevant information about the facts and claims at issue: Rogers' boss Peter Anderton; the 2 Human Resources executives of CCE/CCR whose lost laptops contained the PII of Plaintiff and the Class, Amanda Lockett and someone named “Larson”; the presumptive “security lead at CCR”; Kimberly Keever; and the former President of CCR/CCE, Steve Cahillane, who abruptly left within a week of Coke's discovery of the lost laptops. No order of the Court is required to have the files of the highlighted individuals searched, because Plaintiff has noticed their depositions decus tecum pursuant to Fed.R.Civ.Proc. 30(b)(2) and 34. However, the files of additional, knowledgeable custodians at CCR/CCE should be searched. See Exhibit “1B” hereto (identifying CRR/CCE custodians Armont, Spence, Sandridge, James-Wilson, Buran, Rollins and Quintero-Johnson). The files of additional TCCC employees also should be searched, including involved members of Coke's senior leadership, Global IT, Strategic Security, Information Assurance, Audit, Public Relations and Human Resources, as well as the other relevant departments/committees and their members: ie., the Privacy Council, IS & IC, Audit Committee and Ethics & Compliance Committee. See id.

Coke's decisions to (1) not involve Plaintiff in identifying relevant custodians,[2] and (2) refuse to add any other relevant custodian should be dispositive. An Order of the Court is warranted. While Plaintiff contends that all of the identified custodians on Exhibit “1B”— beyond those for whom deposition notices have issued—should be included, at a minimum, Plaintiff should be permitted to designate at least 10 additional custodians for both TCCC and CCE/CRR, consistent with the rulings of other courts in similar circumstances.[3]

*6 VIA ELECTRONIC MAIL

AND FACSIMILE (610-821-1481)

Hon. Joseph F. Leeson, Jr.

Edward N. Cahn Federal Courthouse

504 West Hamilton Street

Suite 2401

Allentown, PA 18101

Re: Shane K. Enslin v. The Coca-Cola Company, et al. No. 2:14-cv-06476-JFL

Dear Judge Leeson:

I write pursuant to the Court's March 1, 2016 Order, Paragraph 4, wherein the Court permitted the parties to “request the Court's intervention” concerning Defendants' selection of custodians and search terms in response to Plaintiff's discovery. Plaintiff has made an exhaustive effort to resolve these issues with defense counsel, including engaging in a final meet and conference as late as this morning, all to no avail. Coke has not changed its position as to even one suggested custodian and has made only marginal concessions as to their search terms. Accordingly, Plaintiff respectively asks the Court to enter an order directing the Coca-Cola Defendants—ie. the Coca-Cola Company (“TCCC”), Coca-Cola Enterprises (“CCE”) and Coca-Cola Refreshments (“CCR”) (collectively “Coke”)—to include in their searches for responsive documents additional custodians on the list at Exhibit “A” hereto, and additional search terms at Exhibit “B” hereto.

By way of brief background, as the Court is aware from our February 24, 2016 telephone conference, the issue of Coke's limited list of relevant custodians responsive to Plaintiff's document requests was raised by letter motion dated February 16, 2016. See Exhibit “C” hereto. On page 4, Plaintiff challenged Coke's unilateral decision to include only eight (8) custodians (labeled “Key Custodians”) in their search for relevant documents. Plaintiff had no input into the selection of such custodians, and Coke has staunchly resisted any effort to expand its list.[1] Instead, it was only after Plaintiff pointed out to this Court on February 24 that Coke had failed to included Defendant Rogers and his accomplice, Felicia Snead, that Coke capitulated on these two witnesses.[2] See Exhibit “D”, Coke March 11, 2016 letter at 9. Coke has refused to include any one of the additional custodians proposed by Plaintiff, claiming “Plaintiff has yet to explain the relevance of even one of these custodians to his claims or why he has any factual basis for believing any of the additional custodians have unique ESI that is relevant.” Id. at p. 9.[3]

*7 The proposed additional custodians are plainly relevant. They fall into four general categories: (1) superiors and co-workers of TCCC's “Key Custodians” (e.g., Renee Guttmann, Jim Eckart, and Ed Steinike, Fithen's immediate bosses, and members of the Information Security & Internal Controls Committee) (2) knowledgeable employees CCR/CCE (e.g., Kim Keever, “the security lead for CCR” (Fithen Dep. at 176:7-13), and Steve Cahillane, CCR's former President who left abruptly the week after the loss of the laptops was disclosed publicly (Fithen Dep. 199:5-200:7)), (3) members of core and leadership teams identified by Katherine Fithen and Paul Huesken (e.g. the “Core” team involved in the investigation—“shepherded by Alex Cummings [Coke's Chief Administrative Officer]” and including the leaders of security, IT, legal, HR audit, and public affairs, including Ceree Eberly, Ed Steinike, and Jim Hush)(Huesken Dep. 148:18-150:20)), and (4) persons who were assigned users of the subject laptop computers (e.g. Ms. Larson, Ms. Lockett, and other heretofore unidentified individuals (Huesken Dep. at 138:16-139:22, 217:3-219:25[4])). Plaintiff expects to at least interview the former employees, and to depose certain current and former employees with knowledge of the loss of PII, the causes therefor, and resultant damages suffered by Plaintiff and the Class.

Plaintiff also proposed a number of additional search terms for Coke to include in its search of the relevant custodians. While Coke accepted Plaintiff's complete list of proposed search terms for searching his ESI, and Plaintiff subsequently agreed to include all 17 of Coke's additional proposed terms, Coke would not give Plaintiff reciprocity. See March 11, 2016 letter at 1-2. Instead, Coke agreed to include only limited terms that produced limited “hits”. Again, the fact that these additional, included terms produced additional responsive documents demonstrates that Coke's original list was insufficient. Plaintiff thus requests the Court to order Coke to include the additional terms on Exhibit “B” hereto. These terms include the following examples: (1) “corporate information bulletin”/“CIB”, the vehicle by which Coke communicated its loss of laptops to more than 70,000 active employees; (2) “IPP”, “ISP”, “BCP” and “safe” w/10 “harbor”, all relating to Coke policies implicated by the loss of PII, and (3) “mofo”/“Morrison w/5 Forster”, the law firm Coke hired to assist it in its factual investigation.[5]

For these reasons, Plaintiff respectfully requests that this Honorable Court order Coke to include in its discovery the additional custodians listed on Exhibit A hereto, and the additional search terms listed on Exhibit B hereto.

Respectfully submitted,

Donald E. Haviland, Jr.

DEH/sd

Enclosures

cc: Jay W. Chamberlin, Esq. (via email)

William H. Platt II Esq. (via email)

Mark S. Melodia, Esq. (via email)

Nipun Patel, Esq. (via email)

Alexis Cocco, Esq. (via email)

Sarah Hansel, Esq. (via email)

1. Muhtar Kent, Chief Executive Officer

2. Ceree Eberly, Sr. V.P. and Chief People Officer

3. James A. Hush, Strategic Security and Aviation

4. Alex Cummings, Chief Administrative Officer

5. Gary Fayard, former CFO

6. Ed Steinke, Chief Information Officer

7. Renee Guttmann(-Stark), former Chief Information Security Officer

8. Alan Boehme, Chief Technology Officer

9. James Eckart, Chief Information Officer

10. James Schoiefield, former Chief Technology Officer

*8 11. Kevin Treanor, Director, Risk Assessment & Management

12. Punit Vir, Manager, Identity & Access

13. (John) Ray(mond) Johnston, Director, Security Operations Center

14. Ruben Chacon, Director, Information Protection, Information Risk Management

15. Kelly Johnstone, Vice President & Global Operations Director, Strategic Security

16. Scott Baker, Sr. Information Assurance Officer

17. Cindy Jones, Information Assurance Manager

18. Paul Markley, Global Program Lead

19. Kristen Kivem, brought to TCCC by Paul Huesken to develop policy

20. Tim Twomey, Director, Internal Audit

21. Paul Docekal, Finance Director, COBC lead

22. Ann Moore, Director, Communications

23. Cindy Sawyer, Director, Labor Relations & Workplace Rights

24. Karla Younger, VP Human Resources Services

25. Ed Stephenson, Executive Assistant to Chief Privacy Officer

26. Allyson Smith-Harris, Sr. Employee Relations Business Partner

27. Steve Cahillane, former President

28. Amanda Lockett, HR [Title] and custodian of one of the lost laptops with PII on it

29. (–––––) Larson, HR [Title] and custodian of one of the lost laptops with PII on it

30. Kimberly Keever, CISO at CCR and the “security lead at CCR”

31. Patrick Armont, Keever's replacement in July 2014

32. Peter Anderton, Manager, MU Field IT

33. Steve Spence, Sr. Manager, Desk Side Support

34. Jack Sandridge, Information Security

35. Kendra James-Wilson, Field Security Manager

36. Fred Buran, Security Manager

37. Doug Rollins, Marketing, Privacy Council

38. Marie D. Quintero-Johnson, Director, Mergers and Acquisitions

39. Privacy Council

40. IS & IC

41. Audit Committee

42. Ethics & Compliance Committee

1. “Attorney General” or “AG”

VIA ELECTRONIC MAIL

Hon. Joseph F. Leeson, Jr.

Edward N. Cahn Federal Courthouse

504 West Hamilton Street

Suite 2401

Allentown, PA 18101

Re: Shane K. Enslin v. The Coca-Cola Company, et al. No. 2:14-cv-06476-JEL

Dear Judge Leeson:

I write with some reticence seeking the Court's guidance regarding the Coca-Cola Defendants' (collectively, “Coca-Cola”) objections to Plaintiff's first sets of discovery requests served on or about November 10, 2015. These sets include the following:

Coca-Cola responded to these requests on December 14, 2015 on behalf of all the Coca-Cola Defendants. (For the Court's convenience only, I have attached copies of Coca-Cola's responses as Exhibits “A” and “B”, respectively.) As the Court can see, Coca-Cola's responses include sweeping objections and very little in the way of substantive responses. The objections are to the relevant time period, relevancy, and class certification issues, and are interposed as to virtually all of Plaintiff's requests. To date, Coca-Cola has produced just 1,394 pages of discovery in response to Plaintiff's document requests.

My hesitation in writing to the Court is due to the Court's clear admonition about trying to reach agreement in good faith about discovery disputes before seeking the Court's involvement. I believe we have done so. Due to the fact that the discovery cutoff of March 14, 2016 is little more than a month away, Plaintiff believes the matter is ripe for resolution so that the parties may meet their discovery obligations by the deadline.

Our efforts to resolve Coca-Cola's objections and to obtain meaningful discovery began with our request on December 22, 2015 that Coca-Cola remove various objections and produce responsive discovery in advance of a meet and confer scheduled for December 30, 2015. Coca-Cola responded by letter on December 28, 2015. These letters set out fundamental disagreements, which the parties were unable to resolve during the conference or by subsequent letters.

On January 29, 2016, Plaintiff requested that Coca-Cola respond directly to twelve (12) issues. From Coca-Cola's response, it is evident that parties will be unable to come to any agreement with respect to four (4) of these issues. This constitutes a good faith effort by all counsel to resolve these issues. Below Plaintiff articulates its position on these issues. We respectfully request that this Court arrange a telephone conference in the near future to discuss these issues and hopefully provide guidance short of motion practice as to an appropriate resolution.

*10 During our meet and confer, in response to Coca-Cola's objections about the purportedly broad scope of the requests and an unarticulated claim of burden, Plaintiff agreed to narrow the scope of his requests so that each request may be read, to the extent applicable, to apply to “Plaintiff and people like him.” This narrowed definition was intended to focus Coca-Cola on Plaintiff and the persons directly affected by the loss of their personal information. Since more than 70,000 people received a letter from Coke advising them that they may have been implicated in the loss of data, Plaintiff believes that the proper scope of discovery into the class issues should be circumscribed around this ascertainable group of people. As a result, to the extent that the loss of data did not affect such a large group, by Plaintiff's agreement to narrow the scope of his discovery to “people like him” he has responded to Coca-Cola's objections as to relevancy, scope and burden. The discovery only pertains only to Mr. Enslin and the folks included in the putative class definition.

Coca-Cola responded to this attempt to narrow its discovery requests by claiming this language only broadened the scope of Plaintiff's requests. As a result, Coca-Cola has refused to respond to Interrogatory Nos. 12, 13, 16 and 18 on grounds that, inter alia, “no class has been certified.”

Plaintiff believes the legal support for such discovery requests about the nature and scope of the putative class is wholly encompassed in the decision of the Court of Appeals for the Third Circuit in Hydrogen Peroxide and its progeny which ended any question as to whether discovery as to the class and merits may be bifurcated. See generally, In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 319 n. 20 (3d Cir. 2009)(“an artificial ... division between ‘certification discovery’ and ‘merits discovery’ ” is “ultimately wasteful.”) While it may be prudent to redact or otherwise de-identify some sensitive information pertaining to potential class members, Plaintiff believes the disclosure of some personal information, such as the names, employment relationship with the Coca-Cola Defendants, their state of residence is essential to the class certification decision on the issues of numerosity, typicality, ascertainability and commonality.

Plaintiff began his employment with the Coca-Cola Defendants on or about January 9, 1996. Further, Coca-Cola concedes that its employee, Defendant Rogers, began his campaign to remove personal employment data from Coca-Cola included on the laptops he took in 2008. The discovery of the theft was not made until 2015, after which notice was sent to all affected persons. Consequently, the relevant time period for Plaintiff's breach of contract claims extends from 1996 through 2015, while the relevant time period for evidence of the breach extends to 2007 through 2015.

Coca-Cola has refused to produce all relevant documents pertaining to Plaintiff and other employees like him during the relevant time period. Similarly, Coca-Cola has not agreed to produce documents pertaining to, inter alia, its management of personal employment data for either time period—1996–2015, or 2007-2015. Coke grounds its objections on relevancy and burden.

This Court “has cautioned [ ] parties that ‘[w]hen a party objects to a discovery request on the grounds that the request would impose an undue burden, the party must demonstrate with specificity and factual detail the exact nature and extent of the burden.’ ” Parks, LLC v. Tyson Foods, Inc., 2015 U.S. Dist. LEXIS 171420, * 19 (E.D. Pa. Dec. 23, 2015)(emphasis and alteration in original)(certain quotation marks omitted). Coca-Cola produced Plaintiff's employee file, which included some documents from 1996 onward. This corroborates Plaintiff's view that Coca-Cola has retained relevant and responsive documents dated from 1996 through the present. Indeed, according to the Coca-Cola Defendants' retention schedules, records from “acquired, liquidated subsidiaries or Company owned facilities” are retained for at least twenty-five (25) years. See Coca-Cola_DEF-0000161(emphasis in original). Thus, to the extent that employee information was retained from 1996 forward, that nature and scope of that information, the policies and procedures for retaining, storing, and disposing of that information, and whether such policies and procedures were followed are relevant areas of inquiry.

*11 Plaintiff has conceded that certain discovery requests would not pertain to the entirety of this 20-year period. For documents that do not refer or relate to employee information or polices related to the retention of the above information, there are discreet, relevant time periods. Examples of such discreet time periods include the following: when a Coca-Cola Defendant acquired Plaintiff's employer, Keystone Coke, when an entity like CCE was acquired by a Coca-Cola Defendant, and the duration of the data breach. These temporal limitations are obvious from the face of the Plaintiff's requests.

Coca-Cola has failed to articulate with any specificity whether responsive documents related to the retention and movement of employee data from former Coca-Cola entities and subsidiaries to presently existing Coca-Cola entities and subsidiaries exist, and the purported burden associated with retrieving and producing this information. Because Coca-Cola cannot provide Plaintiff with any reasonable understanding of the type of request that would yield the information it seeks or the burdens associated with collecting this information, Plaintiff requests the Court's assistance in resolving this dispute.

Coca-Cola suggests that Requests 3-50, 55-56, 59, and 62-63, as well as Interrogatories 1-6, 15-17, and 19 are irrelevant on their face. Plaintiff disagrees. It is Coca-Cola's obligation to articulate why discovery requests are irrelevant. See, e.g., Roesburg v. Johns-Manville Corp., 85 F.R.D. 292, 296 (E.D. Pa. 1980) (“[t]o voice a successful objection to an interrogatory, [a party] cannot simply intone this familiar litany. Rather, [a party] must show specifically how ... each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive”); see also Rivera v. DHL Global Forwarding, 272 F.R.D. 50, 55 (D.P.R. 2011)(noting that a party must “specifically detail the reasons why” a request is irrelevant). All of Plaintiff's challenged requests are facially relevant, including those that encompass discovery that could bear on Plaintiff's still DPPA claim. See, e.g, Interrogatory No. 2.[1] Absent some discrete challenge to the relevancy of Plaintiff's requests, Plaintiff requests that the Court guide the parties in resolving what Requests and Interrogatories are relevant to this case.

Coca-Cola suggests that Requests 3-5, 12-50, 55-56, and 59, as well as Interrogatories 1, 2, 5-7, 14-15, and 17, are objectionable on grounds of burden. As articulated above, the Rules require at least some articulation that the alleged burden is undue, so that Plaintiff can attempt to work with Defendants to winnow the scope to reduce the claimed burden of responding. Because Coca-Cola has failed to articulate the nature of the burden it faces, Plaintiff seeks to have this objection overruled. See Parks, LLC, 2015 U.S. Dist. LEXIS 171420 at * 19.

Further, Coca-Cola has failed to articulate the amount and degree of responsive information that will be excluded by limiting its search to a small number of custodians and search terms without garnering Plaintiff's agreement to such limitations. Without guidance from Coca-Cola, it is impossible for Plaintiff to agree to arbitrary limitations.[2]

*12 For the foregoing reasons, Plaintiff respectfully requests that the Court schedule a telephone conference to address the above concerns.

Respectfully,

Donald E. Haviland, Jr.

Encl.

cc:

March 11, 2016

VIA ELECTRONIC MAIL

Donald E. Haviland, Jr., Esquire

Jay Chamberlain, Esquire

Haviland Hughes

201 South Maple Avenue

Suite 110

Ambler, PA 19002

Re:Shane Enslin v. The Coca-Cola Company, et al., U.S.D.C. for the Eastern District of Pennsylvania. Case No. 14-CV-06476

Dear Counsel:

I write on behalf of the Coca-Cola Defendants in response to your correspondence of March 9, 2016 and to address outstanding issues related to written discovery / ESI. The Coca-Cola Defendants have also included their proposal for a revised scheduling order for joint submission to Judge Leeson.

We are less than one week away from the deposition of Plaintiff and his wife, but still have not received a single production of ESI from Plaintiff. On our calls of February 22, 2016 and February 29, 2016, you represented that you had already completed your review of Plaintiff's ESI (presumably using the search terms you disclosed to us on March 2, 2016), and were awaiting information from your ESI vendor regarding available metadata. It should not take more than a few days, at most, to determine the types of metadata that are available for a single custodian's ESI. Please produce the responsive ESI you claim to have reviewed by the close of business on Monday, March 14, 2016 without further delay. As we suggested on our last call, your ESI vendor can easily provide an overlay file with the metadata requested by the Coca-Cola Defendants at a later date. We reserve the right to seek Court intervention to the extent you are unable or unwilling to produce any ESI prior to the close of business on March 14th, 2016.

We have reviewed your proposed search terms for Mr. Enslin's ESI. We agree with the terms you have suggested and request that you review and produce responsive ESI that hit on the following additional search terms:

Please also clarify and confirm whether Plaintiff is using any date restrictions to filter his ESI review.

Relevant organizational charts were produced to you yesterday under separate cover at bates range: Coca-Cola_DEF 0004430 to Coca-Cola_DEF 0004759. The organizational charts provided are over-inclusive and include not only the individuals identified by the Coca-Cola Defendants as custodians in their ESI review and production, but hundreds of additional individuals who have minimal or no relevant information or knowledge of this matter (and the provision of the organization chart is not a concession to the contrary). Please note that there are certain organization charts which you requested which we did not provided because they are for departments that simply have no conceivable relevance to this matter because of the nature of their work (for example the Mergers & Acquisitions group).

*13 We have conferred with our client regarding the availability of information pertaining to the current employment and union status of the approximately 74,000 employees who received a notification letter from Kroll. These individuals were identified by state of residence and type of identifying information found on recovered laptops in a spreadsheet which was produced to Plaintiff at Coca-Cola DEF 4420. Current employment status, as well as union v. non-union status, cannot readily be generated for these individuals by Coca-Cola's software or database programs. Such information, while available on an individual basis, would be extremely and unduly burdensome for the Coca-Cola Defendants to obtain for all 74,000 people as it would require a three step manual process: (a) human review of each name on the spreadsheet; (2) manual, human look-up and retrieval of employment and union status on a separate computer system of the identified individual; (3) manual entry into the spreadsheet of any information pertaining to current employment and union status. We estimate that completion of this manual process for∼74,000 individuals would take an individual, working 40 hours per week on this task, nearly two (2) years to complete. We are prepared to provide a supporting declaration or certification should one be deemed necessary to prove the burden imposed on the Coca-Cola Defendants by this request. Given the extreme burden, we respectfully request that Plaintiff reconsider his position and the need for employment and union information for all 74,000 individuals on the Kroll spreadsheet. By way of compromise, we would be willing to provide the employment and union information for all individuals who submitted a credit restoration request form to Kroll. Please advise if this compromise is acceptable.

We have analyzed Plaintiff's revised Search Terms Counter-Proposal emailed to us on Monday, February 29, 2016. Generally, Plaintiff's Counter-Proposal appears designed to greatly magnify the Coca-Cola Defendants' ESI spend without any corresponding explanation for why any of the additional search terms, custodians or time periods may yield uniquely relevant documents or evidence that bears on Plaintiff's remaining claims for breach of implied contract and unjust enrichment. Plaintiff's proposals also fail to take into consideration the need for discovery, and particularly discovery of ESI, to be proportional to the needs of the case under amended Federal Rule of Civil Procedure 26. In that regard, we must again note that Plaintiff alleges, at best, only nominal out-of-pocket damages and has no remaining claim in the Complaint under which he could recover attorney's fees or statutory damages.

As we discussed on our February 29th call, the Coca-Cola Defendants have already expended significant time and expense to review approximately 30,000 documents that hit on our proposed search terms after de-duplication. The vast majority of those documents have been reviewed and responsive documents are in the final stages of quality control checking before an anticipated production today, and a final production on Monday, March 14, 2016. The collection, review, coding, redaction, and production conducted by the Coca-Cola Defendants—which demonstrates more than good-faith efforts to search for documents related to the laptop theft complained of by Plaintiff in the Complaint, and the subsequent investigation and remediation of that theft—has come at a price tag in excess of $130,000 to date (i.e., more than $4/document reviewed). With these considerations in mind, Plaintiff's specific proposals on ESI and the Coca-Cola Defendants' position is addressed below.

As we discussed on our call, we are confident based on our sampling that emails from the below senders contained only spam emails. Nevertheless, without waiver of any objections, to avoid unnecessary discovery disputes for the Court's resolution, these spam emails will be included in our next production given your insistence they be produced.

We have conducted an extensive analysis of Plaintiff's proposed additional search terms using both the time frame suggested by the Coca-Cola Defendants for ESI review (Nov. 1, 2013–Nov. 12, 2014) and the time frame Plaintiff has suggested for ESI review (July 1, 2006–Dec. 31, 2015, which expands the review range by more than eight (8) years). We can first dispatch of the below search term proposals because they yielded zero hits:

Adopting the remainder of Plaintiff's proposal would require the Coca-Cola Defendants to review an additional245,582 documents across only the current custodians. Based on the collection/review/production/processing costs per document already incurred by the Coca-Cola Defendants, the estimated costs of reviewing and producing all of the documents that have hit on Plaintiff's search terms is therefore at least $1,018,328 (assumes $4/document cost for review/coding/production) across only the existing custodian set. That projected spend would likely increase at least three-fold should all thirty (30) additional custodians proposed by Plaintiff be added to the review.

Plaintiff's proposal is unreasonable, clearly disproportionate, and would impose an undue and extreme burden on the Coca-Cola Defendants. Moreover, given that Plaintiff has failed to explain what additional, unique, relevant documents he hopes to uncover as a result of the application of any of his search terms, the vast majority of Plaintiff's terms must be rejected at this time. Indeed, as explained below, sampling of Plaintiff's search terms across even the Coca-Cola Defendants' proposed time frames suggests that almost no additional or new relevant documents will be retrieved applying Plaintiff's terms. The Coca-Cola Defendants are not required to perform ESI searches based on Plaintiff's hope and speculation that some of the terms might uncover responsive documents. Indeed, it is fundamental that it is the producing party who is the best position to determine the method by which they will collect and review documents. Ford Motor Co. v. Edgewood Properties, Inc., 257 F.R.D. 418, 427-28 (D.N.J. 2009) (denying Edgewood's request for additional custodians without “a colorable showing that Ford [was] purposefully (or even negligently) withholding documents”). See also The Sedona Principles on Electronic Document Retention & Production, Principle No. 6: (“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and production their own electronically stored information.”). In gathering paper documents and electronic files from Katherine Fithen, Nneka Ekechukwu, Joseph Moan, Carly Huth, Paul Huesken, Mark Moore, Kelly Sanders, and Lee Blakeney (the “Key Custodians”), the Coca-Cola Defendants will have reviewed, and are in the process of producing non-privileged relevant ESI from the individuals most likely to have documents related to the theft of laptops from the Coca-Cola Defendants, as well as the Coca-Cola Defendants subsequent efforts to investigate and remediate the theft.

*15 The below chart contains an analysis of our sampling efforts for Plaintiff's proposed search terms within the relevant time frame for ESI searches identified by the Coca-Cola Defendants (November 1, 2013 to November 12, 2014), Even under this narrower, relevant time frame, utilizing Plaintiff's proposal would require the Coca-Cola Defendants to review an additional 60,741 documents and expend an additional estimated $242,964 (again, applying a $4/document cost for review/coding/production). Not only is Plaintiff's proposal unduly burdensome, with possibly a few exceptions noted below, the Coca-Cola Defendants' sampling analysis clearly shows that the additional review will provide no proportionate benefit to this case.

We will agree to process and review potentially relevant ESI for Thomas Rogers and Felicia Snead. However, given their role in the case is vastly different from the Key Custodians, different search terms will need to be applied. We will propose a list shortly after Rodgers and Snead's ESI is loaded and we understand what types of documents are included within their ESI.

We maintain our objections to collecting, processing and reviewing ESI for the remaining 28 additional custodians proposed by Plaintiff beyond the Key Custodians identified by the Coca-Cola Defendants. Plaintiff has yet to explain the relevance of even one of these custodians to his claims or why he has any factual basis for believing any of the additional custodians have unique ESI that is relevant. The Key Custodians likely initiated, was copied on, or eventually received most if not all communications relevant to the laptop theft, investigation and remediation efforts. The Federal Rules require discovery be proportional to the needs of this case; they certainly do not require us to embark on an unrestricted search through the ESI of every senior executive employee in the hopes we may find additional potentially relevant material, especially where, as here, it has almost certainly already been gathered, processed and reviewed. See, e.g., Eisai Inc. v. Sanofi-Aventis U.S., LLC, No. CIV.A. 08-4168 MLC, 2012 WL 1299379, at *6 (D.N.J. Apr. 16, 2012) (“The purpose of this rule of proportionality is to guard against redundant or disproportionate discovery....”). Moreover, given that each custodian in this case has provided an average of 14.25 GB of unfiltered ESI, the costs associated with processing of 28 additional custodians alone would easily exceed $50,000. Such costs are disproportional and unduly burdensome absent a more specific, particularized basis for Plaintiff's requested search.

Lastly, I wanted to provide the Coca-Cola Defendants' counter-proposal for an extension of the existing deadlines to the Court's November 16, 2015 Scheduling Order. Your argument that an extension is warranted because of the Coca-Cola Defendants' alleged failure to produce documents or their witnesses prior to March 14, 2016 for deposition is simply not accurate for a number of reasons:

1. Deadline for Completion of Fact Discovery: All fact discovery shall be completed by April 15, 2016. Within the extended discovery period, the parties shall comply with the following deadlines:

2. Deadlines for Completion of Expert Discovery.

3. Deadlines Class Certification Motions.

4. Dispositive Motions. All dispositive motions shall be filed no later than Monday, October 3, 2016, in accordance with the Court's November 16, 2015 Scheduling Order.

If you wish to discuss these issues further today on a call, please let us know a time this afternoon that works. Alternatively, please provide a time early next week you are available.

Very truly yours,

Nipun J. Patel

cc: Mark Melodia, Esquire

Paul Bond, Esquire

Sarah Hansel, Esquire

Alexis Cocco, Esquire

1. Muhtar Kent, Chief Executive Officer

6. Ed Steinke, Chief Information Officer, and Guttmann's boss

15. Kelly Johnstone, Vice President & Global Operations Director, Strategic Security

*18 16. Scott Baker, Sr. Information Assurance Officer

20. Tim Twomey, Director, Internal Audit

22. Ann Moore, Director, Communications and member of ___Committee investigating loss of PII and Coke response thereto

23. Cindy Sawyer, Director, Labor Relations & Workplace Rights

27. Steve Cahillane (noticed for deposition), former President of CCR/CEE who left within a week of Coke's discovery of the loss of CRR/CCE laptops

28. Amanda Lockett, (noticed for deposition), Vice-President of HR and most senior custodian of one of the lost laptops with employee PII on it

30. Kimberly Keever, CISO at CCR and the “security lead at CCR”

35. Kendra James-Wilson, Field Security Manager

37. Doug Rollins, Marketing, member of Privacy Council

39. Privacy Council

Enslin does contend that it was an error of law not to compel Defendants to search the ESI of individuals whom Enslin planned to depose. As discussed later in this Order, that contention is unpersuasive.

See Mem. Supp. Mot. 5-6, 11-13, ECF No. 83.

See Mem. Supp. Mot. 9. At the Court's request, the parties briefed their respective positions on this and other discovery issues by submitting letters to chambers setting forth their respective positions, which they then reviewed with the Court during a telephonic status conference held on May 11, 2016. See Fed. R. Civ. P. 16(b)(3)(B)(iii) advisory committee's note to 2015 amendment (recognizing that many judges find that resolving discovery disputes through informal conferences with the court is “an efficient way to resolve most discovery disputes without the delay and burdens attending a formal motion”). A copy of Enslin's letter on this topic is attached to this Order [hereinafter “Enslin Letter”].

See Enslin Letter Exs. 1A-1B.

See Enslin Letter 1.

See Romero v. Allstate Ins. Co., 271 F.R.D. 96, 106 (E.D. Pa. 2010) (quoting Ford Motor Co. v. Edgewood Properties, inc., 257 F.R.D. 418, 424 (D.N.J. 2009)) (recognizing that the Sedona Principles are “the leading authorities on electronic document retrieval and production”).

Defs.' Resp. Opp'n 5, ECF No. 88.

Defs.' Resp. Opp'n 5.

See Mem. Supp. Mot. 12.

See Mem. Supp. Mot. 12-13.

With respect to Steinike, Enslin also contends that “[i]t is evident from the documents and testimony of others that Mr. Steinike was involved in ... the core decision making process regarding Coke's missing laptops” and that he “was the interface with Coke corporate leadership,” which means that Steinike must possess “unique information related to the laptop incident and Coke's policies and procedures related to information security.” See Mem. Supp. Mot. 6. A review of the testimony that Enslin cites, however, suggests the opposite. Paul Huesken, Defendants' chief information assurance officer, testified that he was part of a team of employees investigating the theft of the laptops. See Huesken Dep. 148:21-149:17, Mem. Supp. Mot. Ex. J, ECF No. 83-1. Huesken, it is important to note, is one of the key custodians Defendants selected for their ESI search. See Defs.' Resp. Opp'n 4. He testified that the team was composed not of the senior Coca-Cola leaders, but of their delegates. See Huesken Dep. 149:1-9, 150:7-11. Only after the team determined the severity of the incident did their principals, such as Steinike, begin to participate. See id. 150:7-16. This testimony suggests the information Steinike possesses about the investigation would be, at best, duplicative of the information possessed by the actual members of the investigation team. More likely is that Steinike is in possession of less relevant information than the team members themselves, because he would not have been as closely involved in the investigation.

In their letter to the Court and accompanying exhibits, which are attached to this Order, Defendants represented that, as of March 11, 2016, they had already expended over $130,000 to review approximately 30,000 documents in response to Enslin's discovery requests, and they also provided various estimates of the costs of expanding their search. See Defendants Letter Ex. 1, at 3-5, 9-10. Defendants represent in their current briefing that they have now reviewed over 40,000 documents. See Defs.' Resp. Opp'n 6.

In his reply to Defendants' opposition to his motion, Enslin points to two responsive emails that Defendants produced, one originating from Keever and one originating from Anderton, to argue that both Keever and Anderton's ESI must be searched. Both of these emails, however, were captured by the search for responsive ESI that Defendants have already performed. Pointing to electronic documents that were successfully captured and disclosed according to a responding party's search methodology does not support the inference that the party's search was inadequate, Enslin also offers no response to Defendants' observation that at no time during Enslin's depositions of Keever and Guttman—two of the four individuals whose ESI Enslin wants Defendants to search—did their testimony indicate that either of them are in possession of any responsive electronic information that Defendants have not already produced. See Defs.' Resp. Opp'n 2.

See, e.g, Plaintiff's April 22, 2016 letter to the Court (at Exhibit “1A” hereto).

See, e.g., Kleen Prods. LLC v. Packaging Corp. of Am., 2012 U.S. Dist. LEXIS 139632 (Sept. 28, 2012 N.D. Ill.) at 48 (ordering additional custodians because “Plaintiffs had no input”).

See, e.g, City of Sterling Heights Gen. Empls. Ret. Sys. v. Prudential Fin., Inc., 2015 U.S. Dist. LEXIS 110712 (Aug. 21, 2015 D.N.J.) (wherein Prudential had agreed to include 44 custodians of plaintiff's choosing, but Court ordered an additional 10 custodians on motion).

See, e.g., Kleen Prods. LLC v. Packaging Corp. of Am., 2012 U.S. Dist. LEXIS 139632 (Sept. 28, 2012 N.D. Ill.) at 48 (ordering defendants to search additional custodians because “Plaintiffs had no input on the initial custodian determinations”).

For reasons unknown to Plaintiff, Coke unilaterally chose to apply “different search terms” to Mr. Rogers and Ms. Snead. Plaintiff submits the same search terms should apply.

Coke also claims the request for additional custodians is not “proportional”, relying on an unreported case decided in 2012–years before the Federal Rules were amended. Id. at pp. 9-10 (citing Esai Inc. v. Sanofi-Aventis U.S., LLC, No. CIV.A. 08-4168 MLC, 2012 WL 1299379, at *6 (D.N.J. Apr. 16, 2012)). Indeed, the New Jersey Court's decision stands for the proposition that the “the selection of custodians is more than a mathematical count. The selection of custodians must be designed to respond fully to document requests and to produce responsive, non-duplicative documents during the relevant period.”Kleen Prods., 2012 U.S. Dist. LEXIS 139632 at 46 (ordering defendants to include additional custodians in their discovery searches).

Reviewing redacted spreadsheets produced by Coke on March 14, 2016.

Reed Smith is Coke's litigation counsel. That Coke chose to involve other lawyers in its investigation of the loss of PII does not insulate the facts uncovered from discovery. To the extent any documents are privileged, they must be logged on an appropriate privilege log, as Coke committed to do but has not done in this case. See Northwood Nursing & Convalescent Home, Inc. v. Continental Ins. Co., 161 F.R.D. 293, 299 (E.D. Pa. 1995) (citing FED. R. CIV.P. 26(b)(5)); Barr Marine Prods. Co. v. Borg-Warner Corp., 84 F.R.D. 631, 635-636 (E.D. Pa. 1979) (“[A] party resisting discovery on the ground of the attorney-client privilege must by affidavit show sufficient facts as to bring the identified and described document within the narrow confines of the privilege.”).

Coca-Cola's objections that the DPPA claim was dismissed misses the mark: the requests seek to learn about whether driver's information was collected, stored and lost, which bears on the ultimate issue of what PII Coca-Cola had and what was lost. The loss of such driver's records is a subset of Plaintiff's claim of a loss of PII, whether or not Coke's failure to store and secure rises to the level of a violation of the DPPA. Indeed, if the evidence shows the latter, the Plaintiff should be permitted to amend his Complaint to conform to such evidence under the Rules. See Fed. R. Civ. P. 15(a)(2)(“The court should freely give leave when justice so requires”).

Artificially limiting discovery to exclude potentially relevant custodians, including senior decision makers, on the bald assertion of irrelevance or burden is inappropriate. Coca-Cola has suggested that the Apex doctrine, among other considerations, supports its attempt to limit document collection to just eight (8) custodians. Plaintiff is unable to find any authority that supports this position.