Slocum v. Int'l Paper Co.
Slocum v. Int'l Paper Co.
2019 WL 8918747 (E.D. La. 2019)
March 15, 2019

van Meerveld, Janis,  United States Magistrate Judge

Search Terms
30(b)(6) corporate designee
Failure to Produce
Proportionality
Download PDF
To Cite List
Summary
The court denied the plaintiffs' Motion to Compel International Paper to upload all or part of its virtual server for searching. The court instead ordered International Paper to provide an affidavit detailing its sampling and testing procedures, to identify employees who were working during the relevant time period, and to produce documents by the end of the month. The court also ordered plaintiffs to serve a supplemental request for production specifying the documents they seek.
Additional Decisions
SHIRLEY SLOCUM, ET AL.
v.
INTERNATIONAL PAPER COMPANY, ET AL.
DERRICK SANDERS, ET AL.
v.
INTERNATIONAL PAPER COMPANY, ET AL.
JAMIA BOLTON, ET AL.
v.
INTERNATIONAL PAPER COMPANY, ET AL.
BRENT JARRELL, ET AL.
v.
INTERNATIONAL PAPER COMPANY, ET AL.
CIVIL ACTION NO. 16-12563 | NO. 16-12567, NO. 16-13346, NO. 16-13793
United States District Court, E.D. Louisiana
Filed March 15, 2019

Counsel

Shawn C. Reed, Kyle T. Del Hierro, Howard & Reed, Covington, LA, D. Douglas Howard, Jr., Jonathan Pedersen, Howard & Reed, New Orleans, LA, for Shirley Slocum, Patricia Welch, Cesar Welch, Sr., Billy Youngblood, Sam Abram, Zipporah Abram, Elizabeth Simmons.

Tim D. Gray, Chelsea Elizabeth Gaudin, Erin Wedge Latuso, Thomas Peyton Smith, Forman, Watkins & Krutz LLP, New Orleans, LA, Daniel J. Mulholland, Pro Hac Vice, Forman, Watkins, & Krutz, LLP, Jackson, MS, for International Paper Company.
van Meerveld, Janis, United States Magistrate Judge

ORDER AND REASONS

*1 Before the Court are the plaintiffs’ Motions to Compel Electronically Stored Data. (Civ. A. No. 16-12563, Rec. Doc. 142; Civ. A. No. 16-12567, Rec. Doc. 85; Civ. A. No. 16-13793, Rec. Doc. 94). Oral argument was held on March 13, 2019, and several issues concerning plaintiffs’ documents requests were addressed. The remaining issue concerns plaintiffs’ request that International Paper be ordered to search its virtual server for relevant and responsive electronically stored information. As to this issue, the Motions to Compel are DENIED.
 
Background
This case concerns the June 9, 2015, release of pressurized “black liquor” (a paper-making by-product) into the atmosphere from the 3rd effect of the evaporator at International Paper Company’s paper mill in Bogalusa, Louisiana following the rupture of a “sight glass.” The black liquor formed a plume that dispersed in the form of a mist or droplets and allegedly caused personal injury, property damage, and nuisance to the plaintiffs.
 
In June 2016, four lawsuits[1] were filed by different law firms, each representing a number of plaintiffs. The cases were removed to this court, and on October 25, 2016, the cases were consolidated for discovery and pretrial purposes. The parties met with the district court for telephone status conferences almost monthly. While some progress was made, efforts to discern like-cases, group them accordingly, and try them in an orderly fashion were unsuccessful. On January 3, 2019, the district court ordered the parties to choose four bellwether cases to proceed to trial on May 13, 2019. Since that time, the parties have been meeting with the undersigned in chambers almost weekly to discuss discovery issues. The parties could not come to a compromise on all the issues concerning plaintiffs’ request for electronically stored information (“ESI”). Accordingly, the court ordered the parties to proceed to motion practice.
 
In the present Motion to Compel, plaintiffs seek an order compelling International Paper to produce ESI responsive to its Rule 30(b)(6) Deposition Notice and related Subpoena Duces Tecum. They propose that International Paper upload all or part of the Bogalusa mill’s “virtual server” where it can be searched using search terms agreed to by the parties.[2] Using search terms and date ranges, plaintiffs say, the potentially relevant documents can quickly be culled from the mass and produced to the plaintiffs. Plaintiffs complain that International Paper’s method of producing documents thus far has failed to result in production of all relevant and responsive documents. They list numerous categories of documents that International Paper has failed to produce. Plaintiffs also complain that employees of International Paper identified some responsive documents for their attorneys, but the documents were not produced. Plaintiffs say their proposed method of searching for relevant documents could be accomplished for about $15,000- $17,000 using Casepoint for one month, after which the relevant data could be removed from Casepoint and stored by the parties independently. Plaintiffs have offered to split this one-month cost.
 
*2 International Paper opposes. It explains that its method of production was to identify individuals involved with the release and interview them to identify responsive records in their departments and to identify other custodians of potentially relevant records. International Paper submits that every type of document that plaintiffs say they have not yet received either does not exist, has already been produced, or is in the process of being produced. It argues that as the custodian of the data, it is in the best position to determine the most effective way to produce responsive documents. It insists that its method of doing so is sufficient and that plaintiffs cannot show it is inadequate. Moreover, International Paper argues that the search term method proposed by the plaintiffs would not turn up the documents that plaintiffs say they are missing. Further, it submits that the cost of searching as proposed by the plaintiffs would be much more expensive than plaintiffs quote. International Paper’s usual vendor has quoted a cost of approximately $67,500. International Paper has also spoken to Casepoint, and to obtain full-processing services that would be required to ingest, process, and index the data in just the public folder of the mill’s virtual server (about 650 GB of data) would cost $20,000 plus $200 per hour in project management fees. Further, International Paper argues that this technical fee does not even address the attorney time that would be required to review all the documents that are hit by the search terms for privilege and for responsiveness. It insists this would be a costly and time-consuming process. It notes that review of the almost 3000 e-mails which “hit” on the additional search terms the parties agreed to resulted in fewer than 200 responsive documents, seeming to suggest that a similar responsiveness rate would be found using the search terms on the virtual server.
 
In reply, plaintiffs do not appear to challenge International Paper’s position that it is entitled to determine the method of production unless plaintiffs can show the method is inadequate. However, plaintiffs challenge some of International Paper’s representations regarding documents that have been or will be produced, essentially arguing that International Paper’s production this far has been deficient and requires court intervention. Plaintiffs do not seem wed to their search term proposal, arguing that their motion to compel ESI should not be conflated with a search of International Paper’s virtual server. Plaintiffs insist they are simply entitled to responsive documents, and they do not care where they come from.
 
Law and Analysis
1. Scope of Discovery
The Federal Rules of Civil Procedure provide that “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. Proc. 26(b)(1). Of note, with the 2015 amendment to Rule 26, it is now clear that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” Id. In assessing proportionality of discovery, the following should be considered: “the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. The advisory committee comments to the 2015 amendment to Rule 26 make clear that the parties and the court have a collective responsibility to ensure that discovery is proportional. The party claiming it would suffer an undue burden or expense is typically in the best position to explain why, while the party claiming the information sought is important to resolve the issues in the case should be able “to explain the ways in which the underlying information bears on the issues as that party understands them.” Id. advisory committee’s note to 2015 amendment. “The court’s responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery.” Id.
 
2. Electronically Stored Information
While not binding on this court, the Sedona Principles on electronic document production offer useful guidance. Principle 6 of the Sedona Principles instructs that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 118 (2018). The commentary explains that
as a general matter, neither a requesting party nor the court should prescribe or detail the steps that a responding party must take to meet its discovery obligations, and there should be no discovery on discovery, absent an agreement between the parties, or specific, tangible, evidence-based indicia (versus general allegations of deficiencies or mere “speculation”) of a material failure by the responding party to meet its obligations.
*3 Id. at 123.
 
For example, in Freedman v. Weatherford Int’l Ltd., the plaintiffs presented 18 e-mails from “critical custodians” that were produced by a third-party auditing firm that worked with the defendant on its remediation efforts, but the e-mails had not been produced by the defendant in discovery. No. 12 CIV. 2121, 2014 WL 4547039, at *2 (S.D.N.Y. Sept. 12, 2014). Plaintiffs argued the e-mails showed the defendant’s production was “significantly deficient” and argued that the defendant should be required to provide them with a report of the documents hit by the search terms used in connection with two investigations of the alleged improper tax practices that had been conducted by outside law firms. Id. at *2-*3. But the court found “the suggested remedy [was] not suited to the task,” noting that only three of the 18 e-mails would have been identified by the search terms. Id. at *3. Instead, the plaintiffs seemed to argue “only that these documents are relevant and should have been produced by” the defendant. Id. The court explained that:
“[T]he Federal Rules of Civil Procedure do not require perfection.” [The defendant] has reviewed “millions of documents [ ] and [produced] hundreds of thousands,” comprising “nearly 4.4 million pages,” in this case. It is unsurprising that some relevant documents may have fallen through the cracks. But, most importantly, the plaintiffs’ proposed exercise is unlikely to remedy the alleged discovery defects. In light of its dubious value, I will not require [defendant] to provide the requested report.
Id. (internal citations omitted) (quoting Moore v. Publicis Groupe, 287 F.R.D. 182, 191 (S.D.N.Y.2012); see In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003) (vacating the district court’s discovery order on a petition for a writ of mandamus, holding that where there was no finding of non-compliance with discovery rules, a sweeping order granting plaintiff direct access to several of the defendant’s databases was an abuse of discretion); Koninklijke Philips N.V. v. Hunt Control Sys., Inc., No. CIV.A. 11-3684 DMC, 2014 WL 1494517, at *4 (D.N.J. Apr. 16, 2014) (denying plaintiff’s request to depose the defendant to determine why certain search and location tools had not been used in responding to discovery requests and holding that plaintiff’s “alleged dissatisfaction with the result of [defendants’] production is not enough to reopen the door to the collection of ESI discovery under an entirely different method”).
 
Similarly, the court in Butler v. Kmart Corp., focused on evidence of evasiveness and thoroughness of the defendant’s search. No. 2:05-CV-257PA, 2007 WL 2406982, at *3 (N.D. Miss. Aug. 20, 2007). The defendant had searched for tangible things and provided affidavits attesting to its search efforts. Id. The court found no evidence that the defendant had not made a diligent search and refused to compel the defendant to conduct an additional search “absent additional evidence tending to show intentional evasiveness or inaction in the face of [the defendant’s] discovery responsibilities.” Id. However, the court found insufficient evidence to determine whether the defendant had conducted a thorough search of its computer systems and ordered the defendant to do so. Id. Nonetheless, the court did not grant the plaintiff’s expert access to search the defendant’s home office database, noting that Rule 34 “does not generally give the requesting party the right to search the responding party’s records.” Id. The court found the plaintiff had not produced any evidence to show the defendant had acted improperly and refused to give the plaintiff unfettered access to defendant’s databases. Id.
 
3. Analysis
*4 Although International Paper has resisted a search of its entire virtual server, International Paper has agreed to search certain subsets of ESI that are searchable without the requirement that all data be copied, indexed, and made searchable. For example, International Paper has searched or has agreed to search:
• The individual user share folders of nine employees
• Hard drives of the computers that were owned by four employees at the time of the release
• International Paper’s Proficy[3] electronic database
• E-mail accounts of ten employees
The parties have been working together to negotiate the custodians and search terms for the above. In addition to the above ESI searches, International Paper has produced or has agreed to produce certain electronic and hard copy documents that it identified as relevant and responsive, including shift reports, inspection reports on the evaporators, monthly utilities reports, evaporator outage information, and maintenance records. Further, the undersigned has ordered and International Paper has now produced a backup copy of the entire Pi electronic data collection system used at the mill.
 
Plaintiffs’ motion identifies certain information they say is missing from International Paper’s production. The court addresses each below, including the resolutions reached at oral argument, and then addresses whether a search of International Paper’s virtual server will be required at this time.
 
a. ESI regarding chemical composition of black liquor
The first deficiency in International Paper’s document production that plaintiffs identify is ESI regarding the chemical composition of black liquor. Plaintiffs say International Paper produced only a single material safety data sheet. But, they say that International Paper’s corporate representative David Villarrubia testified that routine testing of the chemical composition of black liquor is performed by a lab at Georgia Tech University. Villarrubia testified that these documents were made available to International Paper’s counsel, but they were not produced. Plaintiffs also say International Paper failed to produce in-house lab reports and research data from Engineering Records and Library regarding black liquor.
 
International Paper responds that the reason the listed documents were not produced is because it objects to their production. It provides a copy of its response to plaintiffs’ document request, in which it objects that the request seeks documents unrelated to the incident—the accidental release of black liquor in a sight glass of the 3rd effect of the evaporator on June 10, 2015. The response also notes that plaintiffs possess samples of black liquor collected on December 4, 2018 and that International Paper is not aware of any sampling of the constituents of black liquor contained in the 3rd effect of the evaporator tank. International Paper explains that it produced the safety data sheet for black liquor and later produced the safety data sheets for the feedstock into the digester, from which black liquor is generated as a by-product. International Paper notes that the Georgia Tech lab results do not relate to black liquor in the 3rd effect of the evaporator, but they will nonetheless agree to produce them.
 
*5 The dispute regarding the black liquor composition documents concerns whether International Paper should be required to produce documents reflecting the composition of black liquor in other parts of the mill besides the area where the incident occurred. At oral argument, the court required International Paper to provide an affidavit detailing how and when sampling and testing is performed and where the results are for 2013-2016 and November 2018-January 2019. Following the production of this affidavit, the parties shall meet and confer to determine whether the available records are relevant. If the parties cannot resolve the issues between themselves, they can bring the matter to the court’s attention via motion or at a discovery status conference.
 
The court finds that even if it is determined that additional lab data is relevant and should be produced, a search of International Paper’s virtual server is not the appropriate method to locate such information. This dispute does not reflect a deficiency in International Paper’s method of locating documents. Instead, rightly or wrongly, International Paper determined the documents were not responsive. There is no indication at this time that a use of search terms would be a reasonable method of locating documents regarding the composition of black liquor.
 
b. Identity of field operators that witnessed, reported, and/or repaired leaks in the sight glass
Plaintiffs submit that Mr. Villarubia testified that International Paper was aware of the need to replace the sight glasses with stainless steel blanks as early as 2012 when a third-party maintenance contractor recommended the work. The same work was recommended in 2014 and was scheduled to be performed during the April 2015 annual outage, though it was not. Plaintiffs also say that Mr. Villarubia testified that there were multiple leaks in the sight glass in the week before the incident. But Mr. Villarubia could not identify the individuals who witnessed, reported, and/or repaired the leaks. In their motion, plaintiffs say that International Paper has failed to produce “shift logs for hourly employees” or logs that would reflect salaried employees that were on site. They say they need these documents to identify the individuals who “tightened the bolts in an attempt to correct the leaks” and their supervisors. It appears that the following are included in this category of documents that plaintiffs say are missing: employee logs showing when salaried employees entered and exited the turnstile access doors at the mill and contractor logs from “Scan Tron tags.” A related dispute concerns Mr. Villarubia’s testimony that he did not know when the evaporator was placed back into service following the sight glass leak on or about June 7 or 8, 2015. Plaintiffs say they have not received ESI to determine this for themselves.
 
In opposition, International Paper reports that the shift logs for hourly recovery area employees have been produced and it is in the process of producing the same records for hourly maintenance employees. International Paper also reports that the logs showing when management entered and existed the turnstile access doors do not exist. These records are only retained for six months and are not stored elsewhere. International Paper does not address the contractor logs from “Scan Tron tags” or the date the evaporator was placed back in service around June 7 or 8, 2015. These matters were addressed at oral argument where International Paper clarified that the contractor logs are subject to the same problem as the turnstile access logs for salaried employees, which it says no longer exist. As to the date the evaporator was placed back in service, plaintiffs were ordered to serve an interrogatory regarding this issue.
 
*6 In reply, plaintiffs complain that the shift logs they originally demanded in their motion do not actually show the employees who were working during the relevant time period. Instead, the shift logs appear to be shift reports that describe details of what happened on the shift and list employees who were absent, but not employees who were present.
 
At oral argument, International Paper presented a copy of a different document it described as a shift log, which showed the hours and dates worked for a particular employee. It said such documents had been produced for all recovery employees and were in the process of being produced for maintenance employees. It appears there may have been some confusion as to what information appeared in which documents.
 
The issue here pertains to the adequacy of International Paper’s search for the identity of the individuals who would have been involved with any repairs of the sight glass at issue here. However, plaintiffs fail to explain how their proposed ESI search would be successful in identifying those individuals. At oral argument, International Paper reported that it was working to identify the individuals, and the court finds this method appropriate. The court ordered International Paper to identify the employees who were working from June 1, 2015 through the incident and thus might have information about leaks or repairs of the sight glass. It was also ordered to report which of those employees could recall any information about leaks or repairs of the sight glass.
 
c. Engineering Records – diagrams, schematics, specifications for sight glasses
Plaintiffs complain that diagrams, schematics, and specifications for sight glasses were not produced. International Paper responds that plaintiffs’ existing requests did not seek such documents but that it has treated the request as a new request and is searching for responsive documents. It notes that the “original equipment manufacture” manuals for the evaporator and its components have been produced. In reply, plaintiffs respond that this is not a new request and the documents should have been produced in response to their request for “copies of the storeroom catalog(s) which were in use on as well as prior to and June 10, 2015.” Plaintiffs cite deposition testimony for the proposition that the requested information would have been included in the storeroom catalog, however the court cannot find such supporting testimony in the attached excerpts. In any case, the issue appears to be moot because International Paper has now agreed to produce the documents.
 
The court agrees with International Paper’s assessment that the sight glass engineering records were not clearly requested in the subpoena and will not consider sanctions on this point. Further, it does not appear that a search of International Paper’s virtual server is necessary at this time to respond to this now clarified request. At oral argument, International Paper was ordered to produce responsive documents by the end of the month. If the document production is insufficient, the parties should meet and confer to attempt to resolve the issue and, if they are unsuccessful, they can bring the matter to the court’s attention.
 
d. Supply room records- purchase orders for the sight glasses that failed
Plaintiffs complain that International Paper failed to produce supply room records including purchase orders for the sight glasses that failed. International Paper responds that these documents have been produced from the SAP system. In reply, plaintiffs seem to concede that these records have been produced, but they add that the storeroom catalog has not been produced. At oral argument, they added that they had not received purchase orders for gaskets.
 
*7 The court ordered plaintiffs to serve a supplemental request for production specifying the documents they seek. International Paper will respond within two weeks. It does not appear that a search of International Paper’s server is necessary to locate these documents.
 
e. ESI regarding other similar incidents
Plaintiffs also seek documents reflecting prior similar incidents or leaks that were not reported to a regulatory agency such as the Louisiana Department of Environmental Quality as identified by Mr. Villarubia during the deposition. International Paper responds that documents reflecting prior “similar incidents” have been produced because it has produced shift reports, recovery updates, daily reports, and a detailed spill incident report. Plaintiffs do not address this contention in reply. At oral argument, plaintiffs reported that they would review recently produced documents to determine if they need additional documents. If they believe they are missing documents, they will send a new request for production specifically describing the documents they seek.
 
Conclusion
As the discussion above reflects, the deficiencies in International Paper’s production are largely the result of disputes regarding relevance, plaintiffs’ failure to specifically request the documents they seek, the unavailability of the requested information, or delays in International Paper’s production. The court finds that, at this time, a search of International Paper’s virtual server would not be appropriate to discover the information that plaintiff seeks. International Paper is in the best position to determine how to locate relevant documents, and although there have been some deficiencies in its production, these can be remedied in other, more efficient ways. As in Freedman, supra, plaintiffs’ suggested remedy does not suit the task. Between the information International Paper has agreed to produce and the additional information the court has ordered it to produce, the court finds that adequate progress is being made with International Paper’s discovery responses. Accordingly, as to plaintiffs’ request that International Paper search its virtual server, their motions to compel is denied.
 
New Orleans, Louisiana, this 15th day of March, 2019.
 
Footnotes
One of the four was dismissed on March 6, 2019, for failure to prosecute.
Except for certain subsets of data like e-mails, the data on the virtual server cannot be searched in its current form and location.
The Proficy database collects data and feeds some of it into the Pi system, discussed infra. At oral argument, International Paper reported that it has determined which data is fed into Pi and which is not. The former data is already in plaintiffs’ possession in the form of the backup of Pi data that has been produced. As to the latter, International Paper has proposed search terms to identify relevant and responsive data. It appears the parties are still negotiating whether the search terms will be sufficient to locate all relevant documents or whether another method should be used. This issue is not presently before the court, but the parties are urged to continue working towards a solution.