Plaintiff Liza C. Ariza filed this motion to obtain supplemental responses to her Request for Production Nos. 2 served on October 16, 2013, which sought all non-privileged emails and correspondence that relate to her during the period of February 2008 to the present. Plaintiff asked defendant Loomis Armored US, LLC (“Loomis”) to search for all emails on all computers in all offices, including the computers of district manager Marty Gray, HR corporate manager Teri Turet, supervisors Lauren Baronet, Stacie Robinson and Patrick LaFollette, and Elizabeth Calloway and Rebekah Jackson.

Plaintiff previously filed a motion to compel concerning the deficiency in the defendant's response to this request on April 18, 2014. On July 9, 2014 the Court found that the defendant failed to properly support their work-product objection to Request for Production No.2 and ordered the defendant produce all relevant withheld emails and correspondence.

Defendant made a supplemental production on July 22, 2014. After reviewing the response, the plaintiff now argues that the documents produced indicate the existence of other relevant emails that are being withheld by the defendant. Plaintiff gave examples of other emails she believes exist but were not provided. Plaintiff asserted that the defendant's failure to produce these emails demonstrates that the defendant's search procedure for retrieving responsive emails was inadequate. Plaintiff also argued that the defendant failed to include attachments to emails. Lastly, the plaintiff sought sanctions or an evidentiary adverse inference against the defendant for its alleged failure to preserve a video surveillance recording of the plaintiff suffering a seizure.

The exhibits and arguments provided by the plaintiff demonstrate that the defendant should have produced email(s) which it did not produce. Plaintiff's Exhibit 2, two emails sent early the morning of October 12, 2012, indicate they are a reply and a forward of another email, the subject of which was “See attached. EEOC Claim from Liza Ariza.” According to the plaintiff, the original email to which both of the emails refers was not produced, nor was the attachment to which both emails referred. Defendant offered no explanation for why neither the original email nor the attachment was produced. Defendant did not state that the original email was withheld as privileged, and it is not apparent how the attachment—the plaintiff's EEOC claim—would be privileged.

Plaintiff showed by her Exhibit 3 that the defendant failed to produce a series of responsive emails between her and Elizabeth Calloway from September 6 and 12, 2012.

Plaintiff's Exhibit 4 is a May 15, 2014 email from counsel for the defendant. In she states that the EEOC's Keith Hill sent the EEOC charge, dated October 18, 2012, to Loomis' Houston office. The charge was apparently also sent to the Baton Rouge office where it was received on October 22 and then emailed to the Houston office. But this is inconsistent with the emails from October 12 (Exhibit 2) and with the plaintiff's Exhibit 6. Exhibit 6, a letter to the plaintiff from the EEOC dated October 5, 2012, states, in relevant part: “Because the document that you submitted to us constitutes a charge of discrimination, we have complied with the law and notified the employer that you filed a charge.”

*2 Collectively, the plaintiff's exhibits show that the defendant failed to produce documents it should have produced, and did not offer any convincing explanation for this failure. The email which began the October 12 email thread is particularly important since it strongly suggests that by at least the day before the defendant knew the plaintiff had filed an EEOC charge, even if it did not receive the finalized Charge of Discrimination until some time later.

In these circumstances, the plaintiff is entitled to relief, as set out below.

Plaintiff's argument concerning the spoilation of the surveillance video is unconvincing. Plaintiff failed to show that Loomis intentionally destroyed the surveillance video or that there is any other basis to impose an adverse inference arising from the defendant's failure to produce the surveillance video.

Accordingly, the plaintiff's Expedited 2nd Motion to Compel Production of Documents is granted in part.

IT ORDERED that, within ten days, the defendant shall file a statement of (1) the protocol(s) or search methodology it used to locate electronically stored information (“ESI”), particularly emails, (2) who created the protocol/search methodology, (3) who conducted the search, (4) who, if anyone, supervised the search, and (5) what, if any, steps were taken to insure that the search resulted in identification of all relevant ESI.

IT IS FURTHER ORDERED that, as to the original email that started the October 12, 2012 email thread, within 10 days, the defendant shall produce the original email, and all other emails which followed it in the same thread, and all attachments to which any such email referred. If the defendant fails to do so, then the defendant shall produce an affidavit or declaration under oath, made by a corporate representative, describing all efforts to do so and explaining why the original email and/or attachment(s) cannot be produced.

Defendant's failure to comply with this Order may result in sanctions as permitted by Rule 37(b)(2)(A), including a finding regarding when the defendant had actual knowledge that the plaintiff filed a charge of discrimination with the EEOC.