Todd v. Fed. Express Corp.
Todd v. Fed. Express Corp.
2011 WL 13312346 (D.S.C. 2011)
May 27, 2011
Hodges, Shiva V., United States Magistrate Judge
Summary
The court ordered FedEx to search and produce ESI within the parameters specified by Plaintiffs. The parties were also ordered to meet and confer to reach agreement regarding the format in which FedEx will produce the responsive data, the time FedEx requires to produce the data, and the time the parties require to complete discovery. The court warned the parties that it will only extend the discovery period by a short and reasonable time and ordered that the data be produced in a manner that preserves metadata.
Dannetta TODD, Plaintiff,
v.
FEDERAL EXPRESS CORPORATION and FedEx Express, Defendants.
Donna Anderson, Plaintiff,
v.
Federal Express Corporation, Defendant
v.
FEDERAL EXPRESS CORPORATION and FedEx Express, Defendants.
Donna Anderson, Plaintiff,
v.
Federal Express Corporation, Defendant
C/A No.: 4:09-1501-TLW-SVH, C/A No.: 4:09-3039-TLW-SVH
United States District Court, D. South Carolina, Florence Division
Signed May 27, 2011
Counsel
Alice Fountain Paylor, Lorene Stuhr Dukes, Rosen Rosen and Hagood, Jack D. Cordray, Michael Williams Abro, Cordray Law Firm, Charleston, SC, for Plaintiff.Amy Yager Jenkins, McAngus Goudelock and Courie, Mt. Pleasant, SC, Dominic Allen Starr, McAngus Goudelock and Courie, Myrtle Beach, SC, Elizabeth Low, Frederick L. Douglas, Pro Hac Vice, Federal Express Corporation Legal Department, Memphis, TN, for Defendants.
Hodges, Shiva V., United States Magistrate Judge
ORDER
*1 This matter is before the court on the fourth motion of plaintiffs Dannetta Todd and Donna Anderson (collectively, “Plaintiffs”) to compel defendants Federal Express Corporation and FedEx Express (“FedEx”) to produce additional documents in the two above-captioned cases [Entry #122 in C/A No.: 4:09-1501-TLW-SVH; Entry #54 in C/A No.: 4:09-3039-TLW-SVH].[1]For the reasons set forth herein, Plaintiffs' motion is granted in part and denied in part.
I. Factual Background
A. Plaintiffs' Actions
Plaintiffs are former couriers for FedEx at its Myrtle Beach, South Carolina station (known as the MYRA station). FedEx terminated Plaintiff Todd on May 17, 2007, citing violations of corporate policy. Plaintiff Todd alleges FedEx wrongfully discharged her based on a pretextual, performance-related ground. Plaintiff Todd filed discrimination charges against FedEx with the Equal Employment Opportunity Commission (“EEOC”) on December 11, 2007. Pl. Todd’s Compl. ¶ 10. After receiving right-to-sue letters from the South Carolina Human Affairs Commission (“SCHAC”) in February 2009 and the EEOC in April 2009, Plaintiff Todd commenced this suit in June 2009. Much of her focus in this litigation concerns the actions of her former supervisor, Dominic DiPalma, and his relationship with her former coworker, Sally Hall, who replaced Plaintiff Todd after she was terminated.
Plaintiff Anderson alleges she was constructively discharged based on actions of her immediate supervisor, DiPalma, and others. Plaintiff Anderson alleges that DiPalma told her on December 27, 2006, that she would have to make extra deliveries, after which she complained, asking if others with fewer deliveries could assist. She alleges that DiPalma yelled at her for having made the request and reported him on “Alert Line,” FedEx’s third-party-administrated system to which employees could anonymously report workplace complaints. She claims that after she reported DiPalma, he reduced her hours. On March 31, 2007, she quit her position at FedEx, which she characterizes as a constructive discharge. Plaintiff Anderson also raises allegations regarding her former coworker Sally Hall, claiming Hall received preferential treatment. Plaintiff Anderson alleges that male coworkers were assigned to easier routes and were permitted to complain about assignments without retribution. Plaintiff Anderson filed discrimination charges against FedEx with the EEOC on December 17, 2007. Pl. Anderson’s Compl. ¶ 8. After receiving a right-to-sue letter from the EEOC in August 2009, Plaintiff Anderson commenced this suit in November 2009. FedEx denies both Plaintiffs' claims, and the parties are engaging in ongoing discovery.
Both Plaintiffs bring the following causes of action: (1) age discrimination based on disparate treatment pursuant to the Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. § 621, et seq., and S.C. Code Ann. § 1-13-80; (2) sexual harassment based on a hostile work environment and gender discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and S.C. Code § 1-13-80; (3) retaliatory discharge pursuant to the ADEA, Title VII, and S.C. Code § 1-13-80; (4) a state law claim for defamation; and (5) a state law claim for intentional infliction of emotional distress.
B. Discovery Disputes
*2 The court has conducted several hearings and telephone conferences regarding ongoing discovery disputes in this case. Plaintiffs have consistently claimed that FedEx has not produced documents that they believe must exist as to certain topics. In earlier motions to compel, Plaintiffs described the allegedly missing documents as being evidenced by “gaps” in the production. In describing these gaps, Plaintiffs typically have referred to an event or a document that has been produced or described as privileged and indicated there are “gaps” in FedEx’s production of documents because documents (or other documents) regarding the event or specific topic have been produced. See, e.g., Pl. Todd’s Reply in Support of Mot. to Compel, Ex. A [Entry #54-1] (chart listing documents allegedly withheld as identified by “gap in production”). For example, Plaintiffs cite to the May 17, 2007 letter to Plaintiff Todd from DiPalma that terminated her for violating FedEx’s Acceptable Conduct Policy. See Entry #54-1, at 5, row 35. Plaintiffs cite to that letter as evidence of a “gap” in production because “Defendant has failed to provide a complete record of documentation related to the investigation into Todd’s alleged violation” of that policy. Id.
At a hearing on Plaintiffs' earlier motions to compel, the court sought affirmative assurances from FedEx’s counsel that no such documents existed. To the extent such assurances could be provided, the court denied Plaintiffs' motions. However, at the December 20, 2010 hearing, the court learned that FedEx had not searched all potentially responsive electronically stored information (“ESI”), including emails, in response to Plaintiff’s document requests. See Dec. 20, 2010 Tr. at 109–10 [Entry #124].
C. Production of ESI
At the December 20, 2011 hearing, counsel for FedEx explained to the court the steps he had taken to collect documents potentially responsive to Plaintiffs' discovery requests. He indicated that litigation hold memoranda were distributed after each Plaintiff had filed suit. FedEx’s counsel stated that responsive documents produced came from hard-copy files or from email folders employees had saved to their computers in virtual folders as. pst files. Dec. 20, 2010 Tr. at 109–10. FedEx’s counsel indicated that, when collecting documents, he had instructed at least one human resources employee involved in Plaintiffs' terminations, Ms. Peasley, to print all of the emails relating to Plaintiffs that she had saved as .pst files. Tr. at 111.
Counsel indicated that he had not searched emails on the FedEx system for potentially relevant information because FedEx only maintained emails for one year unless they were saved as .pst files. After one year, non-saved emails were automatically deleted. Tr. at 111. Because Plaintiffs filed suit in 2009, but had been terminated in 2007, counsel indicated emails from around the time of Plaintiffs' terminations would not have remained available for searching. Tr. at 110–11.
In discussing the issue of potentially-available ESI, counsel for FedEx also explained that, upon receiving Plaintiff Todd’s Complaint, but prior to sending out the litigation hold memorandum, he instructed FedEx’s IT department to covertly copy the contents of the computer being used by Plaintiffs' former supervisor, Dominic DiPalma. Dec. 20, 2010 Tr. at 99–100. At the time Plaintiffs filed suit, DiPalma was no longer the supervisor at the MYRA station, where he had supervised both Plaintiffs. He had been transferred to the Florence, South Carolina FedEx station. Despite having ordered the copying of DiPalma’s hard drive, counsel did not have that content searched for emails or other documents potentially responsive to Plaintiffs' discovery requests. Id. at 100. Upon inquiry from the court, FedEx’s counsel stated that he did not know whether the hard drive covertly copied was the same hard drive DiPalma had used when at the MYRA station while supervising Plaintiffs. Id. at 99–100. FedEx counsel indicated that he had not searched the copied content for emails or other ESI responsive to Plaintiffs' discovery requests.
The court ordered FedEx to determine the volume of ESI existing on DiPalma’s hard drive, and in particular, the court directed FedEx to determine whether DiPalma used the same computer at the MYRA and Florence stations. Tr. at 126–27. The court encouraged the parties to work together in determining the most efficient method of searching and producing responsive emails without requiring additional guidance from the court. Tr. at 127 and Entry #79.
*3 On January 7, 2011, the court conducted a follow-up telephone conference regarding discovery issues, including issues related to DiPalma’s emails and the computer he used while at FedEx. After FedEx’s counsel informed the court that the data captured from DiPalma’s computer did include potentially responsive emails, Jan. 7, 2011 Tr. at 22, the court issued the following order:
Appropriate representative(s) of Defendant’s information technology group is to provide a declaration regarding (1) what happened with any computers used by Dominic DiPalma from 2000 until he left the MYRA station, and (2) Defendant’s policy regarding retention of employees' computers or other devices that store digital information and the information on such computers or devices when one is no longer employed by Defendant. In follow up to the December 20, 2010 hearing, counsel for Defendant reported findings regarding emails to or from DiPalma from 2000 through the time of his transfer to the Florence station. As soon as possible, Defendant is to produce responsive, nonprivileged emails obtained from searching those emails for the terms “Todd” and “Anderson” in a searchable portable document file format, as well as a privilege log reflecting any information withheld or redacted from those responsive documents. After production of those documents, a similar production is to be made for emails obtained using the search term “Hall.”
[Entry #85] (emphasis added).
In a January 12, 2011 letter, FedEx counsel indicated that FedEx produced via overnight delivery a CD that contained searchable portable document file (“PDF”) format of responsive emails and other ESI that contained at least one of the search terms ordered by the court. Jan. 12, 2011 Ltr. from FedEx’s Counsel at 4 [Entry #88-1]. FedEx produced 313 MB of data, comprised of 44 emails with 230 attachments and 176 loose files. FedEx explained that the documents produced were part of the 1.9GB of data that had been collected from DiPalma’s computer just after Plaintiff Todd filed suit and that it searched that collected data using Clearwell, a third-party software program. Id.
On January 24, 2011, the court conducted another telephone conference regarding discovery of ESI. As a result, the court issued the following order on January 24, 2011:
The following memorializes rulings set forth orally during the January 21, 2011 telephone conference: A. Defendant is ordered to fully comply with Plaintiff’s discovery requests, specifically focusing on the appropriate search of FedEx’s electronic data and producing responsive electronic documents, including emails. Plaintiff’s counsel is to work with Defendant’s counsel in formulating appropriate search terms for review of emails and other forms of digital data from all employees or departments of Defendant involved in the decision to terminate Plaintiff.B. Defendant to provide declaration(s) of appropriate corporate designee(s), as contemplated in Fed. R. Civ. P. 30(b)(6), regarding the following: (1) what happened with any computers or other devices that store digital information used by Dominic DiPalma, or data contained on such computers or other devices that store digital information, from 2000 until he left the MYRA station; (2) Defendant’s policy, procedure, and practice regarding retention of employees' computers or other devices that store digital information and the policy, procedure, or practice regarding retention or destruction of information on such computers or devices when an employee is no longer employed by Defendant. To the extent no corporate policy existed regarding computers or other digital devices and/or the retention or destruction of data on such devices during this time, the corporate designee is to so declare and to provide information concerning the practice regarding such matters during the time there was no written policy or procedure in place. C. Defendant to provide Plaintiff with searchable copy of all data obtained from Mr. Dominic DiPalma’s computer. D. Regarding the data “covertly obtained” from Mr. DiPalmas computer, Defendant to provide declaration of person with knowledge of what steps were taken to obtain that data. This declaration is to be provided by a corporate representative with direct knowledge of what was done to capture the data and at whose direction it was done. E. Counsel for Defendant to provide statement regarding steps taken to obtain information potentially responsive to discovery requests propounded by Plaintiff. This statement is to include information regarding steps taken to collect emails and other forms of digital data from all employees or departments of Defendant involved in the decision to terminate Plaintiff. If prior representation of counsel that the only digital information available are emails that individuals printed and maintained in folders of hard-copy documents or “.pst files,” which have been represented by counsel to be emails that individuals placed in subfolders in Microsoft Outlook or similar email-management software, counsel can so state....
*4 Entry #94 (emphasis added).
The parties were not able to agree on search terms. Twice, the parties sought, and the court provided, clarification of the scope of the ESI discovery it ordered to be produced. See Entry #99; Entry #100. Even so, the parties continued to dispute the scope of the court’s discovery orders, particularly regarding discovery of ESI, so the court scheduled another telephone conference for March 3, 2011.
On March 2, 2011, Plaintiff wrote the court and provided a copy of an email FedEx produced on February 3, 2011, regarding FedEx’s email archiving policies. [Entry #117, #117-3]. That December 15, 2008 email from Belinda Watkins of FedEx’s EIS Network Computing informed FedEx’s “Archive Users” that, as of December 20, 2008, FedEx’s Enterprise Email Archiving system would move emails more than 30 days old to a different location and that, on December 20, 2008, email messages more than one year old would be permanently deleted from the user’s mailbox and would no longer be retrievable. Entry #117-3 at 1. During the hearing, FedEx’s counsel indicated that the email archiving system information was no different than what he had represented to Plaintiffs' counsel and the court before—that is, that emails more than one year old were no longer available. Tr. at 22. Counsel disagreed as to the nature of the “email archiving system” and the “email vault” referred to in the December 15, 2008 email. Specifically, FedEx’s counsel disputed that the archiving system and the vault were contemplated by Mr. Rodriguez-Chapman, the FedEx representative who had provided his declaration regarding how FedEx maintained emails. SeeEntry # 107-3.
At the March 3, 2011 hearing, Plaintiffs' counsel indicated he would put his request for an imaged copy of DiPalma’s hard drive “on hold” and seek first the data that FedEx copied covertly from DiPalma’s drive. Tr. of March 3, 2011 H'rg [Entry #125] at 17. Plaintiff’s counsel also sought to have date-restricted searches made of the hard drives of “the participants in the decision-making process.” Plaintiffs' counsel identified these participants as Ms. Peasley, Mr. Hooss, Mr. Whitley, and Mr. Saladino. Tr. at 17–18. Plaintiffs' counsel also sought access to the email archiving system referenced in the December 15, 2008 email. Tr. at 18.
Rather than permit continued debate regarding the discovery of ESI, the court permitted Plaintiffs to file a short motion to compel to identify the “specific search terms [they] want to have executed on the specific computers or classes of computers by the Defendant.” Tr. at 30. The court indicated that Plaintiffs were to provide “specific search terms, together with specific date parameters to further narrow the scope.” Tr. at 31. The court also encouraged the parties to work together to avoid having to file a motion to compel. Tr. at 32. The court cautioned the parties to be careful in constructing Boolean search terms and to try to use terms in conjunction with one another that target documents relevant to this matter. Tr. at 45. The court also noted that it would consider cost-shifting based on the percentage of relevant documents. Tr. at 45. Noting that fear of costs would be a question for “another day,” the court indicated the parties should “define the search terms in a way that would most efficiently and cost effectively reveal the documents that are at issue.” Tr. at 45. The court admonished that there was also a risk that, “if the search terms are not reasonable or are too broad, then the motion to compel would be denied.” Tr. at 45. Further, the court indicated that the parties “have a very strong incentive to work together to find what is a reasonable set of queries to be run on a reasonable set of computers.” Tr. at 45. In the event that the parties were unable to agree on such a set of terms, the court would consider a motion to compel by Plaintiffs. Tr. at 45–46.
*5 Memorializing the rulings from the bench on March 3, 2011, the court issued the following docket text order:
... Counsel are to consult and attempt to agree on a reasonable set of search terms for FedEx to run on a reasonable set of computers or other devices that contain digital information in producing additional digital information to Plaintiff. In the event counsel are unable to agree, Plaintiff is to file a motion to compel no later than March 17, 2011. The motion is to clearly identify search terms, date ranges, servers, and computers of specifically identified employees, past and present, Plaintiff seeks to have searched. The Court cautions that if the information requested in the motion to compel is too broad, the motion may be denied. FedEx will have seven business days to file its response to Plaintiffs motion; Plaintiff will have five business days to file a reply. Counsel for FedEx is ordered to locate and secure the computer used by Dominic DiPalma and preserve it without future use until further order of the court.
[Entry #120] (emphasis added).
On March 16, 2011, Plaintiffs filed the instant motion to compel. The motion has been fully briefed.
II. Discussion
As Plaintiffs summarize in their Reply memorandum, they seek the following:
• Plaintiffs request that Defendant use the “Discussion Threads” feature of the Clearwell software to search for correspondence related to the incomplete discussion threads Plaintiffs have identified;
• Plaintiffs request that they be provided access to Clearwell’s representatives for the purpose of working with them to create search queries specifically suited to Clearwell’s unique search capabilities;
• Plaintiffs request that Defendants conduct the keyword searches queries they have drafted, that all searches be made of the metadata date fields as well as the bodies of all e-mails, and that all dates, used for date range searching, be translated into all formats used by Clearwell Systems;
• Plaintiffs request that they be provided with a detailed description of the Defendant’s Litigation Hold in place for these cases;
• Plaintiffs request that all of Defendant’s production, to date, and all future production be produced either in native format with MD5 Hash values assigned to every file to ensure the integrity of each file or as native files converted to Group IV Tiff images, with extracted text, metadata, and appropriate load file specifications; and
• Plaintiffs, again, request that Defendant fully comply with their previous discovery requests. Specifically, Plaintiff Todd requests that Defendant fully comply with Number 7 of her First Set of Requests for Production of Documents.[2]
Pls.' Reply at 10 (footnote added).
*6 In response, FedEx first argues that Plaintiffs' motion should be denied in full because Plaintiffs' counsel did not comply with his duty to consult in an attempt to narrow the issues prior to filing this motion. FedEx then argues that Plaintiffs' requests related to the Clearwell discovery tool are improper and unprecedented, that Plaintiffs' proposed search terms and parameters are too broad, and that Plaintiffs' technical complaints and requests regarding the mode of prior productions are unfounded. In reply, Plaintiffs claim they consulted and that their requests are proper and should be granted. The court will consider these arguments in turn.
A. Plaintiffs' Duty to Consult
The court first considers FedEx’s argument that Plaintiffs' motion should be denied for their failure to consult with FedEx’s counsel prior to filing this motion. At the close of his motion, Plaintiffs' counsel Jack Cordray provided the following affirmation regarding the duty to consult:
The undersigned affirms in accordance with Federal Rule of Civil Procedure 37(a)(1) and Local Civil Rule 7.02 DSC, as counsel for the moving party, that prior to filing this Motion, he has communicated, in writing, with opposing counsel and has attempted in good faith to resolve the matters contained in this Motion.
Pls.' Mot. at 9–10.
Counsel for FedEx takes issue with this representation and provides an email exchange between counsel in which Plaintiffs' counsel indicated to counsel for FedEx that he had satisfied his duty to confer. FedEx counsel informs the court that on March 11, 2011, he wrote Plaintiffs' counsel, reminding him that they needed to consult regarding search terms. In that letter, he indicated FedEx’s position regarding search terms, asked Plaintiffs' counsel to consent to the clawback agreement discussed during the March 3, 2011 hearing so that production would not be slowed down by extensive privilege review by FedEx, and indicated he continued to have issues with the costs of the extensive discovery Plaintiffs were requesting. Mar. 11, 2011 Ltr. [Entry #127-1]. FedEx provides details of the continued communication between counsel in its motion, attaching the letters and emails as exhibits, so the court will not repeat the exchanges in full here. Communicating mainly through his associate, Plaintiffs' counsel indicated that he would consider a clawback agreement, that he was “working on his motion,” that he was researching Clearwell himself and was unhappy with the manner in which FedEx produced earlier batches of ediscovery, and that he would be able to speak with counsel for FedEx regarding appropriate search terms after he filed his Fourth Motion to Compel. Seeexs. 3, 4, to Def.'s Response (Mar. 15–16, 2011 emails between counsel) [Entry #127-3, #4].
Further, FedEx informs the court that, after Plaintiffs filed the instant motion, counsel for FedEx wrote to Plaintiffs' counsel and indicated that he had not complied with his duty to consult. Entry #127-6 (Mar. 23, 2011 email). Plaintiffs' counsel responded in part as follows:
I think all of the record in this case including our last phone conference in which the Judge essentially invited the filing of the Fourth Motion to Compel would meet any interpretation of meet and confer.
Entry #127-6.
In addition to arguing that Plaintiffs' position is incorrect, counsel for FedEx also argues that Plaintiffs' counsel ignored the following statement from the court at the March 3, 2011 hearing:
Now, if you all want to work together on figuring that [search terms] out and avoid the motion to compel the process to go back and forth, then I would encourage you to do that. It does not look like you all have been able to do what seems to be a pretty basic function of coming up with those terms and narrowing it based on the information that is available to both sides, so I am happy to take [a] look at it on a motion to compel.
*7 Mar. 3, 2011 Tr. at 32. Further, the court indicated that “the parties have a very strong incentive to work together to find what is a reasonable set of queries to be run on a reasonable set of computers.” Mar. 3, 2011 Tr. at 45.
Additionally, the court’s docket order memorializing the rulings from the March 3, 2011 hearing required counsel “to consult and attempt to agree on a reasonable set of search terms for FedEx to run on a reasonable set of computers or other devices that contain digital information in producing additional information to Plaintiff. In the event counsel are unable to agree, Plaintiff is to file a motion to compel no later than March 17, 2011.” Mar. 3, 2011 Docket Text Order [Entry #120].
Further, FedEx quotes portions of the Sedona Conference Cooperation Proclamation, which challenges counsel to communicate with each other to “facilitate cooperative, collaborative, transparent discovery.” See Def.'s Response at 6, ex. 8 (quoting Sedona Conference Cooperation Proclamation). FedEx argues that Plaintiffs' failure to follow the Proclamation and the rules and specific order of the court to consult and attempt to narrow the scope of requested ediscovery should result in the court’s denying Plaintiffs' motion in full.
In Plaintiffs' reply, counsel argues that he did attempt to resolve discovery issues without including the court and attaches correspondence dated January 7, 2011; February 1, 2011; and February 23, 2011. Pls.' Reply at 2 and ex. 1 [Entry #131, #131-1]. He also points to the court’s statement at the March 3, 2011 hearing that it would be happy to consider discovery issues on a motion to compel because the parties seemed unable to agree on search terms. Pls.' Reply at 2 (citing Mar. 3, 2011 Tr. at 31–32). Plaintiffs' counsel also attaches a March 15, 2011 email to counsel for FedEx to further his argument that he fulfilled his consulting duty. He claims that the email shows that he “attempted to resolve discovery issues with counsel for FedEx and communicated the fact that Plaintiffs would be receptive to FedEx’s production of additional documentation.” Pls.' Reply at 2 and ex. B [Entry #131, #131-2] (informing FedEx counsel that Plaintiffs' counsel “is always willing to receive the production of additional documents from FedEx[,] that he was working on a motion to compel, as court “invited him to do,” and that he would discuss proposed the clawback agreement after he has been sent a draft to review).
The court finds Plaintiffs' counsel did not satisfy his Local Rule 7.02 duty to consult. Although the court indicated it would consider a motion to compel if one became necessary, the court expressly ordered that the parties first to were to “consult and attempt to agree on a reasonable set of search terms” and were to file a motion to compel only if they were unable to agree. Mar. 3, 2011 Docket Text Order [Entry #120]. The court does not condone counsel’s failure to consult with opposing counsel subsequent to the March 3, 2011 hearing and order. However, given the history of this case and the need to advance matters, the court declines FedEx’s request that it deny Plaintiffs' motion to compel on the failure-to-consult ground. The court now considers the substance of Plaintiffs' motion, but notes that nothing in this ruling should be construed as condonation of Plaintiffs' counsel’s failure to consult.[3]
B. Plaintiffs Seek an Order for FedEx to Run Specific Searches Using Clearwell.
*8 Plaintiffs focus much of their motion to compel on a discussion of Clearwell, the third-party data-search software FedEx indicated it used for searching and compiling the data produced to Plaintiffs. See Pls.' Mot. at 2–4. Plaintiffs set out features that Clearwell’s website information indicates it offers in the processing, review, and production of electronic data, and then ask that the court order FedEx to utilize specific Clearwell features to search its electronic data. Pls.' Mot. at 4–7. In particular, Plaintiffs focus on Clearwell’s “discussion thread feature,” which Clearwell describes as “linking together all related messages into chronological threads that capture entire discussions, including all replies, carbon copies, blind carbon copies, and forwards.” Pls.' Mot. at 3 (quoting from www.clearwellsystems.com). Plaintiffs argue that having FedEx use the “discussion thread” feature of Clearwell to search for documents related to specific subjects and times could be more beneficial than having FedEx run specific search terms. Pl.'s Mot. at 7–9. Plaintiffs provide a list of these specific topics and time-frames, calling them “incomplete discussion threads,” and note they correspond to what Plaintiffs previously had called production gaps. Pls.' Mot. at 5–6. They also ask that the court order FedEx make its Clearwell representative available to assist them in “creat[ing] search queries specficially suited to Clearwell’s unique search capabilities.” Pls.' Mot. at 8.
FedEx counters that Plaintiffs' focus on Clearwell is a “red herring,” and that it is not appropriate for Plaintiffs to focus on what tools FedEx uses to review data. Def.'s Response at 9–10. FedEx argues that Plaintiffs' request that specific “discussion threads” be searched via Clearwell is analogous to a party receiving production of paper documents in the manner they were kept in the ordinary course of business and then complaining that they should also have been provided an indexed, tabbed set of those same records because it was aware the producing party had organized the data that way for itself. FedEx also argues that there is no authority for a court to require it to make Clearwell representatives available to Plaintiffs, pointing out that Plaintiffs could purchase Clearwell themselves or otherwise obtain information from their representatives. Def.'s Response at 10–11.
In reply, Plaintiffs repeat the list of production “gaps”/“incomplete discussion threads” identified in past motions, and add nine more “incomplete threads,” claiming FedEx is willfully withholding documents. Pls.' Reply at 3–7. They reiterate their request that searches using Clearwell’s “discussion thread” tool should be required, arguing those searches may produce more responsive documents than searches performed using the search terms submitted.
The court denies this portion of Plaintiffs' motion. Plaintiffs have provided no authority for such a request to be granted, and the court finds the request goes beyond the bounds of a responding party’s responsibilities in producing digital information pursuant to Fed. R. Civ. P. 34.
C. Plaintiffs' Proposed Search Terms and Parameters
1. The Parties' Arguments
Although they suggest that a better result would be achieved if FedEx were ordered to use Clearwell to search for “discussion threads,” Plaintiffs also provide a list of persons whose data they seek to have searched (sometimes referred to as “custodians” in ediscovery parlance), and provide date ranges and lists of Boolean search terms for each of those custodians. Entry #122-6. Plaintiffs also seek to have the court order FedEx to run those searches. Pls.' Mot. at 7–8, and ex. F. Plaintiffs' list includes 13 custodians and provides a proposed beginning and ending date range, as well as Boolean search terms they want for each custodian. For many of the custodians, Plaintiffs include the same list of 23 Boolean search phrases, as follows:
DiPalma AND Hall
DiPalma AND Hall AND favoritism
DiPalma AND Hall AND relationship
DiPalma AND favoritism
DiPalma AND discrimination
Anderson AND warning
Anderson AND EEO
Anderson AND investigation
Anderson AND complaint
Todd AND coding
Todd AND violation
Todd AND falsification
Todd AND GFTP
Todd AND conference call
DiPalma AND vehicle AND address
DiPalma AND address
Todd AND DEX
Todd AND investigation
Hall AND accident
DiPalma AND Hall AND preferential treatment
Todd AND investigative reports
DiPalma AND acceptable conduct
DiPalma AND leadership failure
*9 Ex. F to Pls.' Mot. [#122-6].
FedEx argues that the search terms Plaintiffs propose are too broad. Def.'s Response at 6–7. It argues that the time frames are too broad, noting that Plaintiffs propose a July 2009 end-date for 11 of the 13, although both Plaintiffs were terminated in 2007. It argues Plaintiffs should not have included DiPalma as a custodian because FedEx already produced all of his electronic data. FedEx also notes that Sally Hall did not begin work at FedEx until August 2005, but Plaintiffs did not limit the date ranges for searching for the name “Hall.”
FedEx also argues Plaintiffs' search requests are overly broad in that they ask that the searches be run for eight custodians in addition to the five custodians already identified by the parties and the court as potentially having responsive data. The court previously ordered that FedEx’s ediscovery search focus on (1) the circumstances surrounding Todd’s termination, and (2) FedEx’s investigation into the Hall/DiPalma relationship. Def.'s Response at 7 (citing to court’s docket orders at Entry #94 and #99). FedEx responded to those orders, indicating it had collected data from those responsible for the Hall/DiPalma investigation—Kristine Peasley, Gregory Taylor, and Nancy Harthun—and those responsible for Plaintiff Todd’s termination—DiPalma, Richard Hooss, and Peasley. Def.'s Response at 8. FedEx argues that Plaintiffs have not offered a discussion of why the additional custodians should be on the list. Finally, FedEx indicates that, if the court required it to run Plaintiffs' requested searches only on Peasley, Taylor, Harthun, and Hooss, there would be 3932 reviewable documents. FedEx argues that this many documents are disproportionate for the case. Def.'s Response at 9.
In the event the court requires additional e-discovery, FedEx argues that it should be limited to the following:
1. Order that the Court will consider the reasonableness of Plaintiffs' search terms request in the event it ever considers a fee petition in these cases as discussed at the March 3, 2011 hearing. See Transcript at 45 (“You know, one option that I have seen and have done is to access cost-shifting on the basis of the percentage of documents that were relevant in a particular case which ash the tendency to increase the attention of the parties early to make sure that what they seek is truly what they need in the case and what is truly relevant to the case.”);
2. Limit the production of ESI to the four remaining custodians that were involved either in Todd’s termination or the DiPalma/Hall relationship, which in addition to DiPalma will produce over 13,000 reviewable items.
3. Enter the claw back agreement that was agreed to by the Parties and is attached hereto as Exhibit 7 (and submitted electronically to Chambers); and,
4. Require the parties to comply with Local Rule 7.02 prior to any future discovery motions.
Def.'s Response at 14–15.
Responding to FedEx’s specific issues with the proposed search terms, Plaintiffs argue that FedEx completely ignored the Anderson case in its argument and ignored that Plaintiffs bring hostile-work-environment claims, as well. Pls.' Reply at 7–8. They claim the broader time frames are required to consider the hostile work environment issue, citing Ziskie v. Mineta, 547 F.3d 220, 225 (4th Cir. 2008), which provides that “evidence about how other employees were treated in that same workplace can be probative of whether the environment was indeed a sexually hostile one.” Accordingly, Plaintiffs argue the search terms were drafted to “cover time periods during which other employees were subjected to the hostile work environment in which Plaintiffs worked.” Pls.' Reply at 8. Plaintiffs also claim they showed their search terms to a third-party vendor of e-discovery review software, who informed them that the search queries they submitted were “in line with current practices.” Pls.' Reply at 9.
2. The Court’s Ruling Regarding Additional Production
*10 As an initial matter, the court reiterates what it has told counsel at prior hearings: counsel and the parties are in the best position to determine what searches should be performed to learn the truth regarding what happened in these cases. Counsel and parties know the players, the allegations, and the facts. FedEx and its counsel know the computer systems involved in these searches. See Mar. 3, 2011 Hr'g Tr. at 10–11. On the other hand, the court is in the worst position to make decisions regarding search parameters. That stated, the court has thoughtfully considered these issues and sets out is rulings regarding the search terms and custodians Plaintiffs seek in their motion.
The court has considered all of Plaintiffs' requested search terms, time-frames, and custodians, and finds their requests overly broad. The court grants this portion of Plaintiffs' motion in part and denies it in part, as detailed herein.
The court orders that FedEx execute the Boolean searches set forth below for the seven individuals listed below. For all individuals, FedEx shall search for the time-frame from January 1, 2005 through December 31, 2007. The court denies Plaintiffs' remaining requests identified in exhibit F to their motion, [Entry #122-6], for search terms, time-frames, and/or custodians not listed below.
FedEx is to execute these searches of the hard drive(s) of any and all computers the individual used, any and all corporate email accounts in which information sent by or received by the individual was stored, any and all corporate servers on which information from the individual’s computer(s) was stored, and any and all repositories in which emails and other electronic data created by or received by the individual was archived.
The court denies Plaintiffs' specific requests for technical production form other than to order that the data be produced in a manner that preserves metadata. Counsel for Plaintiffs and FedEx are ordered to meet and confer to reach agreement regarding the following:
(1) the format in which FedEx will produce the responsive data;
(2) the time FedEx requires to produce the responsive data in the agreed-upon format, subject to the Clawback Agreement; and
(3) the time the parties require to complete discovery in these cases.
In considering the time required for this production and completing discovery, the parties are advised that the court will only extend the discovery period by a short and reasonable time. The court directs the parties to file a short document in ECF no later than June 3, 2011, providing this information.
FedEx shall execute searches for the following custodians and search terms for the period from January 1, 2005 through December 31, 2007:
a. Dominic DiPalma
FedEx argues that it need not perform any additional searches as to DiPalma because it already “produced all of his data.” Def.'s Resp. at 7. To the extent the potential sources and repositories of data identified above were previously searched in a manner that captured all data now ordered to be produced, FedEx need not reproduce such data.
1. DiPalma AND Hall AND favoritism
2. DiPalma AND Hall AND relationship
3. DiPalma AND favoritism
4. DiPalma AND discrimination
5. Anderson AND warning
6. Anderson AND EEO
7. Anderson AND investigation
8. Anderson AND complaint
9. Todd AND coding
10. Todd AND violation
11. Todd AND falsification
12. Todd AND GFTP
13. Todd AND conference call
14. Todd AND DEX
15. Todd AND investigation
16. DiPalma AND Hall AND preferential treatment
17. Todd AND investigative reports
b. Kristine Peasley (Parlier)
1. DiPalma AND Hall AND favoritism
2. DiPalma AND Hall AND relationship
3. DiPalma AND favoritism
*11 4. DiPalma AND discrimination
5. Anderson AND warning
6. Anderson AND EEO
7. Anderson AND investigation
8. Anderson AND complaint
9. Todd AND coding
10. Todd AND violation
11. Todd AND falsification
12. Todd AND GFTP
13. Todd AND conference call
14. Todd AND DEX
15. Todd AND investigation
16. DiPalma AND Hall AND preferential treatment
17. Todd AND investigative reports
c. Richard Hooss
1. DiPalma AND Hall AND favoritism
2. DiPalma AND Hall AND relationship
3. DiPalma AND favoritism
4. DiPalma AND discrimination
5. Anderson AND warning
6. Anderson AND EEO
7. Anderson AND investigation
8. Anderson AND complaint
9. Todd AND coding
10. Todd AND violation
11. Todd AND falsification
12. Todd AND GFTP
13. Todd AND conference call
14. Todd AND DEX
15. Todd AND investigation
16. DiPalma AND Hall AND preferential treatment
17. Todd AND investigative reports
d. Michael Saladino
1. DiPalma AND Hall AND favoritism
2. DiPalma AND Hall AND relationship
3. DiPalma AND favoritism
4. DiPalma AND discrimination
5. Anderson AND warning
6. Anderson AND EEO
7. Anderson AND investigation
8. Anderson AND complaint
9. Todd AND coding
10. Todd AND violation
11. Todd AND falsification
12. Todd AND GFTP
13. Todd AND conference call
14. Todd AND DEX
15. Todd AND investigation
16. DiPalma AND Hall AND preferential treatment
17. Todd AND investigative reports
e. Michael Whitley
1. DiPalma AND Hall AND favoritism
2. DiPalma AND Hall AND relationship
3. DiPalma AND favoritism
4. DiPalma AND discrimination
5. Todd AND coding
6. Todd AND violation
7. Todd AND falsification
8. Todd AND GFTP
9. Todd AND conference call
10. Todd AND DEX
11. Todd AND investigation
12. DiPalma AND Hall AND preferential treatment
13. Todd AND investigative reports
f. Nancy Harthun
1. DiPalma AND Hall AND favoritism
2. DiPalma AND Hall AND relationship
3. DiPalma AND favoritism
4. DiPalma AND discrimination
5. Anderson AND warning
6. Anderson AND EEO
7. Anderson AND investigation
8. Anderson AND complaint
9. Todd AND coding
10. Todd AND violation
11. Todd AND falsification
12. Todd AND GFTP
13. Todd AND conference call
14. Todd AND DEX
15. Todd AND investigation
16. DiPalma AND Hall AND preferential treatment
17. Todd AND investigative reports
g. Gregory Taylor
1. DiPalma AND Hall AND favoritism
2. DiPalma AND Hall AND relationship
3. DiPalma AND favoritism
4. DiPalma AND discrimination
5. Anderson AND warning
6. Anderson AND EEO
7. Anderson AND investigation
8. Anderson AND complaint
9. Todd AND coding
10. Todd AND violation
11. Todd AND falsification
12. Todd AND GFTP
13. Todd AND conference call
14. Todd AND DEX
15. Todd AND investigation
16. DiPalma AND Hall AND preferential treatment
17. Todd AND investigative reports
This ends the court’s list of the searches FedEx is directed to execute.
In addition to arguing Plaintiffs' requested search parameters are too broad, FedEx requests that the court discuss the potential for shifting the costs of the production of data in this matter. Def.'s Resp. at 14. Such issues are not now before the court. The court notes, however, that cost-shifting options are available when parties abuse the discovery process through requests that are unreasonably disproportionate to the matter or the relevant data produced. See Mar. 3, 2011 Hr'g Tr. at 45. The court cannot over-emphasize the necessity for counsel to work together in completing discovery in the most efficient and cost-effective manner possible.
*12 Although it would be premature to consider any cost-shifting, the court does reiterates that it not condone the failure of Plaintiffs' counsel to consult with FedEx’s counsel prior to filing this motion, nor does it condone Plaintiffs' proposal of overly broad search parameters. FedEx is not immune from criticism, either. The Sedona Conference Cooperation Proclamation, which FedEx cited in criticizing the actions of Plaintiffs' counsel, applies to all parties and counsel. FedEx’s failure to search sources of ESI containing information requested by Plaintiffs, including the DiPalma’s hard drive, did nothing to further the Sedona Conference’s goal of communicating to “facilitate cooperative, collaborative, transparent discovery.” Sedona Conference Cooperation Proclamation, at 1.
In sum, the court is concerned by the generally contentious spirit between counsel throughout the discovery phase of this case. At an appropriate juncture in this litigation, the court may revisit the reasonableness of the parties' positions in fulfilling their discovery obligations once the court becomes better apprised of the extent of delay, overproduction, overreaching, and obfuscation by the parties.
D. Plaintiffs Request that FedEx Produce Discovery in Specific Format.
Plaintiffs request an order that FedEx reproduce documents in a specific format and adhere to certain technical specifications and that FedEx’s future productions comply with the criteria. Pls.' Mot. at 9 (requesting production “in native format with MD5 Hash values assigned to every file ... or as native files converted to Group IV Tiff images, with extracted text, metadata, and appropriate load file specifications.”).
FedEx claims that Plaintiffs' complaints about its prior production of electronic data are unfounded. Def.'s Response at 12–14. FedEx states that its first production of documents from DiPalma’s electronic data was made in searchable PDF format, which was the format requested by Plaintiffs and ordered by the court. The second production was provided in native format, as requested by Plaintiffs' counsel, as well as in a “mixed format” that FedEx’s IT personnel believed would be more usable. The second production included all metadata as well as a load file. Def.'s Response at 12; Declaration of Patrick (FedEx’s IT person) [Entry # 128].
In Reply, Plaintiffs include a letter from a vendor concerning technical problems with FedEx’s production that cannot be analyzed using e-discovery software unless reproduced to meet specific criteria. Reply at 9–10 and ex. E [Entry #131-5].
Although cited by neither party, Fed. R. Civ. P. 34 addresses the mode of producing electronic discovery. “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.” Fed. R. Civ. P. 34(b)(2)(E)(ii). Further, Fed. R. Civ. P. 34(b)(1)(c)permits a party’s document request to “specify the form or forms in which electronically stored information is to be produced.” In discussing this issue, the Advisory Committee drafting the 2006 amendments to the Federal Rules related to ediscovery stated:
In the written response to the production request that Rule 34requires, the responding party must state the form it intends to use for producing electronically store information if the requesting party does not specify a form or if the responding party objects to a form that the requesting party specifies. Stating the intended form before the production occurs may permit the parties to identify and seek to resolve disputes before the expense and work of the production occurs.
Fed. R. Civ. P. 34 Advisory Comm. Notes 2006 Amend., Subd. (b) (emphasis added).
*13 Plaintiffs have not argued that they initially requested electronic data be produced in a specific format, nor do their document requests indicate any such designation. See Pl. Todd’s 1st and 2d Sets of Reqs. for Produc. to Def., exs. B, C to Pl.'s 2d Mot. to Compel [Entry #52-3, #52-4]. The court denies Plaintiffs' request as being outside the scope of Rule 34. FedEx need not re-produce electronic data already provided to Plaintiffs.
E. Plaintiffs Request Description of FedEx’s “Litigation Hold.”
In addition, Plaintiffs also request a detailed description of Plaintiff’s “Litigation Hold,” which Plaintiffs define as follows:
[A]ll information in FedEx’s custody and control regarding the lawsuits of Dannetta Todd and Donna Anderson and specifically related to any investigation, discipline and/or termination of an employee for falsification from January 1, 2007 onward as well as information related to courier route assignments from January 1, 2007 onward that was requested to be preserved by hold notice issued by FedEx’s Legal Department. This includes any and all documents in whatever form and whatever location, including computer files, e-mails, zip disks, “drop” files, “dead” files, personal notes, handwritten notes, and informal files. This also includes original documents, drafts of documents, and copies of documents that differ in any way from the originals (e.g., contain handwritten notes, etc.);
Pls.' Mot. at 2–3.
FedEx does not respond to this specific request in its memoranda. However, in email discussions provided to the court, counsel for FedEx asks Plaintiffs' counsel why it seeks the total size of all edocuments subject to the litigation holds in these cases, arguing Plaintiffs would not be entitled to such information. See Entry #61-22 (Mar. 29 and 30, 2011 emails between counsel) (FedEx’s counsel asking why size of electronic data placed on hold is relevant and how Plaintiffs believe they are entitled to that information).
In responding to the email from FedEx’s counsel, Plaintiffs' counsel indicated the information would be helpful in the event Plaintiffs sought production of all electronically stored information placed on litigation hold for these cases. Id. FedEx’s counsel responded by arguing Plaintiffs would not be entitled to the information regarding the size of the data placed on litigation hold anymore than a party would be entitled to knowing how many pages of paper documents a party reviewed before producing documents. Further, FedEx’s counsel argued that a request for production of all electronic data would be quite broad and unlikely to be granted. Id.
The court agrees with FedEx. Plaintiffs have not provided legal precedent or other authority or argument regarding why they should receive information from FedEx regarding the amount of data placed on litigation hold. The court is aware of no reason they should receive this information, and it is persuaded by FedEx’s point that requiring disclosure of such information would be similar to requiring a party to disclose the number of paper documents it reviewed prior to producing responsive documents. This portion of Plaintiffs' request is denied.
F. Plaintiffs Request Order Requiring Full Compliance with Plaintiff Todd’s Request #7.
Finally, Plaintiffs request that FedEx “fully comply with their prior discovery requests,” and Plaintiff Todd specifically requests that FedEx comply with Request 7 of her First Set of Requests for Production. Pls.' Mot. at 9. FedEx does not specifically respond to this request. The court finds that this request is subsumed by the more detailed requests in Plaintiffs' motion and need not address it further here.
III. Conclusion
*14 Based on the foregoing discussion, Plaintiffs' Fourth Motion to Compel [Entry 122 in 4:09-1501-TLW-SVH; Entry #54 in 4:09-3039-TLW-SVH] is granted in part and denied in part. FedEx is to search and produce data within the parameters specified above. Counsel for Plaintiffs and FedEx must meet and confer to reach agreement regarding the following:
(1) the format in which FedEx will produce the responsive data;
(2) the time FedEx requires to produce the responsive data in the agreed-upon format, subject to the Clawback Agreement; and
(3) the time the parties require to complete discovery in these cases.
The parties shall provide this information to the court no later than June 3, 2011.
IT IS SO ORDERED.
The parties have agreed that discovery conducted in Todd, C/A No. 4:09-1501, may be used in Anderson, C/A No. 4:09-3039, and vice-versa.
Plaintiffs did not include the text of Todd’s Request number 7. Todd’s first set of requests was attached to Plaintiff Todd’s Second Motion to Compel, and requested the following:
7. The complete personnel file of Plaintiff, including, but not limited to, all documents contained therein such as applications, resumes, performance evaluations, awards, supervisor notes and comments, bonuses and disciplinary actions taken, as well as all documents concerning the allegations in this lawsuit.
Ex. B to Pl. Todd’s 2d Mot. to Compel [Entry #52–3].
Although this should go without saying, counsel for Plaintiffs and for FedEx must specifically consult with each other immediately prior to filing any additional motions.