Chen-Oster v. Goldman, Sachs & Co.
Chen-Oster v. Goldman, Sachs & Co.
2019 WL 1250381 (S.D.N.Y. 2019)
March 19, 2019
Lehrburger, Robert W., United States Magistrate Judge
Summary
The court agreed with Plaintiffs that document sampling and computer assisted review was preferable to less discriminating search-term methodology. The court ordered the parties to negotiate a reasonable search process for pre-2012 ESI and modified the schedule for Defendants to complete export of custodial data. Plaintiffs were also able to assess search terms without fully exported ESI.
Additional Decisions
H. Cristina CHEN-OSTER, Shanna Orlich, Allison Gamba, and Mary De Luis, Plaintiffs,
v.
GOLDMAN, SACHS & CO. and the Goldman Sachs Group, Inc., Defendants
v.
GOLDMAN, SACHS & CO. and the Goldman Sachs Group, Inc., Defendants
10-cv-6950 (AT) (RWL)
United States District Court, S.D. New York
Signed March 19, 2019
Counsel
Adam T. Klein, Christopher McNerney, Cara Elizabeth Greene, Carmelyn Pingol Malalis, Daniel S. Stromberg, Pro Hac Vice, Justin Mitchell Swartz, Michael Christopher Danna, Ossai Miazad, Sabine Jean, Melissa Lardo Stewart, Outten & Golden LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, Alison M. Stocking, Anne B. Shaver, Pro Hac Vice, Heather H. Wong, Pro Hac Vice, Kelly Dermody, Michael Ian Levin-Gesundheit, Michelle Lamy, Tiseme Gabriella Zegeye, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Dana Gale Sussman, Safe Horizon Anti-Trafficking Program, Brooklyn, NY, Paul W. Mollica, Outten & Golden LLP, Chicago, IL, for Plaintiffs H. Christina Chen-Oster, Shanna Orlich.Adam T. Klein, Cara Elizabeth Greene, Carmelyn Pingol Malalis, Justin Mitchell Swartz, Melissa Lardo Stewart, Outten & Golden LLP, Rachel Geman, Lieff Cabraser Heimann & Bernstein, LLP, New York, NY, Alison M. Stocking, Anne B. Shaver, Pro Hac Vice, Heather H. Wong, Pro Hac Vice, Kelly Dermody, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, Dana Gale Sussman, Safe Horizon Anti-Trafficking Program, Brooklyn, NY, Paul W. Mollica, Outten & Golden LLP, Chicago, IL, for Plaintiff Lisa Parisi.
Christopher McNerney, Adam T. Klein, Daniel S. Stromberg, Pro Hac Vice, Michael Christopher Danna, Ossai Miazad, Sabine Jean, Outten & Golden, LLP, New York, NY, Kelly Dermody, Michael Ian Levin-Gesundheit, Michelle Lamy, Tiseme Gabriella Zegeye, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco, CA, for Plaintiffs Allison Gamba, Mary De Luis.
Neal D. Mollen, Paul Hastings LLP, Washingon, DC, Theodore Otto Rogers, Jr., Ann-Elizabeth Ostrager, Michael Peter Reis, Beth Deborah Newton, Margaret Elizabeth Bartlett, Robin D. Fessel, Suhana S. Han, Hilary M. Williams, Joshua Seth Levy, Robert Joseph Giuffra, Jr., Sharon L. Nelles, Sullivan & Cromwell, LLP, Andrew J. Peck, DLA Piper US LLP, Patrick William Shea, Paul Hastings LLP, New York, NY, Amanda Flug Davidoff, Elizabeth A. Cassady, Jeffrey B. Wall, Sullivan & Cromwell LLP, Barbara B. Brown, Pro Hac Vice, Carson H. Sullivan, Pro Hac Vice, Paul Hastings LLP, Washington, DC, for Defendants.
Lehrburger, Robert W., United States Magistrate Judge
ORDER: ESI SCHEDULE
*1 On March 6, 2019, this Court ordered a schedule for the parties to resolve disputes about ESI and for Defendants' export, review and production of ESI (the “Scheduling Order”). (See Dkt. 693.) The Scheduling Order has spawned three letter motions by the parties. (SeeDkt. 695, 696, 699.) This order resolves those disputes as follows.
1. Plaintiffs' request to engage in document sampling to aid selection of search terms (Dkt. 695): Generally speaking, the Court agrees with Plaintiffs that, particularly in cases of this magnitude, using sampling and techniques associated with computer assisted review is preferable to less discriminating search-term methodology. Further, the Court has reviewed the Defendants' proposed search term strings and finds them to be overly restrictive in most instances. The Court therefore directs Defendants to choose one of the following paths to follow: Either (1) Use the sampling protocol proposed by Plaintiffs, OR (2) Employ Defendants' search terms subject to first allowing Plaintiffs to modify those terms by (a) expanding “within” delimiters to a less restrictive number (e.g., from /5 to /25), (b) incorporating use of a search term based on the word culture, and (c) for any string using more than one delimiter (e.g., “A /5 B /5 C”), eliminating one of the delimiters entirely (e.g., changing A /5 B /C to A /15 B). For this second approach (i.e., Plaintiffs' modification of Defendants' proposed search terms), Plaintiffs shall exercise discretion and reasonableness in making the modifications; which, in some instances, may mean that no modifications need be made to a particular string (e.g., as an obvious example, no need to expand “Chen /2 Oster”). Plaintiffs may propose changes other than or in addition to the foregoing in instances where the changes outlined above are not apt. Defendants may comment on the changes designated (and any additional changes proposed) by Plaintiffs, and the parties shall then meet and confer in good faith to arrive at a resolution of any disputes. The parties shall proceed expeditiously to do so.
2. Plaintiffs' request to compel production of pre-2012 ESI (Dkt. 696): The parties shall negotiate in good faith a reasonable search process for pre-2012 ESI that is geared to finding relevant information not previously produced and at the same time avoiding undue burden and cost. As part of this negotiation, Plaintiffs must provide, if they have not already done so, a description of the types of information they expect would be found that would not have been captured by ESI search and collection during class certification. Likewise, Defendants must be specific about supporting claims of burden and cost. The Court leaves open the possibility that after good faith negotiation further discovery of pre-2012 ESI would not be proportional to the needs of the case, but the current record does not bear that out.
3. Defendants' request to modify the Scheduling Order (Dkt. 699): The Court finds somewhat dubious Defendants' plea for more time to complete export of custodial data. Defendants previously assured Plaintiffs and the Court that Defendants would complete export of the first 46 custodians by March 18, 2019. That apparently has not been accomplished. Meanwhile, Mr. Yanagisawa’s declaration attesting to time limitations and burden is quite general. It also does not identify by what date Defendants can complete the export process; nor does it state that Defendants require an extension to the date requested by counsel. Nonetheless, the Court accepts that Defendants require some amount of time beyond what was previously scheduled for completion of the exporting process. The Court agrees with Plaintiffs that having interim dates and reporting deadlines is useful. Accordingly, the Schedule is modified as follows:
*2 To the extent it may assist the parties in further negotiations, based on the parties' arguments presented in their joint submission, the Court notes the following:
1. The concept of using different search terms for different categories of custodians seems sensible;
2. The Court agrees that at some juncture, Plaintiffs should be able to assess search terms without fully exported ESI;
3. The Court agrees that the parties are in the best position to evaluate the details of document production. At the same time, the Court believes it is helpful to have deadlines to keep the parties on track.
SO ORDERED.
Footnotes
1
While opposing any alteration to the schedule, Plaintiffs suggest that if the Court were inclined to grant more time that it do so based on the 4-custodians per week figure provided by Defendants. Doing so brings the completion date to April 22 (as measured from March 25), not April 12 as appears in Plaintiffs' March 18, 2019 letter.