Williams v. Big Picture Loans, LLC
Williams v. Big Picture Loans, LLC
2019 WL 11553452 (E.D. Va. 2019)
May 29, 2019
Payne, Robert E., United States District Judge
Summary
The Court ordered the agreed-upon search terms in Exhibit 1 to be applied forthwith, with all non-privileged documents to be produced by May 29, 2019. The Court also ordered the search terms proposed by the plaintiffs in Exhibit 3 to be used, with non-privileged documents to be produced by July 12, 2019. Martorello was ordered to deliver to the Court properly tabbed notebooks of the documents as to which privilege is asserted.
Additional Decisions
LULA WILLIAMS, et al., Plaintiffs,
v.
BIG PICTURE LOANS, LLC, et al., Defendants
v.
BIG PICTURE LOANS, LLC, et al., Defendants
Civil Action No. 3:17-cv-461
United States District Court, E.D. Virginia
Signed May 29, 2019
Counsel
Amy Leigh Austin, Consumer Litigation Associates, James Wilson Speer, Virginia Proverty Law Center, Richmond, VA, Craig Carley Marchiando, Leonard Anthony Bennett, Consumer Litigation Associates, Newport News, VA, Kristi Cahoon Kelly, Andrew Joseph Guzzo, Casey Shannon Nash, Kelly Guzzo PLC, Fairfax, VA, Beth Ellen Terrell, Pro Hac Vice, Elizabeth Anne Adams, Pro Hac Vice, Jennifer Rust Murray, Pro Hac Vice, Terrell Marshall Law Group PLLC, Seattle, WA, Eleanor Michelle Drake, Pro Hac Vice, John Gerard Albanese, Pro Hac Vice, Berger & Montague PC, Minneapolis, MN, Michael Allen Caddell, Caddell & Chapman, Houston, TX, for Plaintiffs.David Neal Anthony, Timothy James St. George, Troutman Sanders LLP, Richmond, VA, Charles Palella, Pro Hac Vice, Armstrong Teasdale LLP (NY-NA), New York, NY, Douglas Marsh, Pro Hac Vice, Michelle Lynne Alamo, Pro Hac Vice, William Ojile, Pro Hac Vice, Armstong Teasdale, LLP, Denver, CO, Hugh McCoy Fain, III, John Michael Erbach, Maurice Francis Mullins, Spotts Fain PC, Richmond, VA, John Benjamin Rottenborn, Woods Rogers PLC (Roanoke), Roanoke, VA, Jonathan Peter Boughrum, Pro Hac Vice, Michael Christopher Witsch, Pro Hac Vice, Richard Lawrence Scheff, Pro Hac Vice, Armstrong Teasdale LLP (NA-PA), Philadelphia, PA, Jonathan Frank Hollis, Woods Rogers PLC (Richmond), Richmond, VA, Karen M. Stemland, Woods Rogers PLC (Charlottesville), Charlottesville, VA, Paul Louis Brusati, Pro Hac Vice, Tod Daniel Stephens, Pro Hac Vice, Armstrong Teasdale LLP, St. Louis, MO, for Defendants.
Payne, Robert E., United States District Judge
MEMORANDUM ORDER
*1 This matter is before the Court on the issues involving the collection of electronically stored information (“ESI”) raised in PLAINTIFFS' MEMORANDUM REGARDING ESI DISPUTES (ECF Nos. 489 (redacted) and 493 (sealed)), the response thereto (ECF No. 503), and the reply (ECF No. 504).
The Court previously considered the JOINT STATUS REPORT REGARDING ESI PROTOCOL (ECF No. 451) and, by ORDER entered on April 5, 2019 (ECF No. 460), directed the parties: “to complete the ESI Protocol and to submit to the Court for resolution any disputes over aspects of the [ESI] Protocol as to which they could not agree.” The matters currently before the Court are submitted pursuant to the directives in that ORDER (ECF No. 460), and the Court has heard, by way of telephone conference, arguments of the parties on their respective positions.
The pleadings and the arguments of counsel disclose that many of the disputes over the ESI Protocol have been resolved by the parties. For example, the parties have agreed upon certain search terms. See Exhibit 1 (ECF No. 493-2). The plaintiffs have agreed to eliminate certain search terms. See Exhibit 2 (ECF No. 493-3).
However, the parties are at odds to the extent of which, if at all, certain other disputed search terms proposed by the plaintiffs are to be used. The disputed terms appear in Exhibit 3 (ECF No. 493-4) to the PLAINTIFFS' MEMORANDUM REGARDING ESI DISPUTES (ECF No. 493).
There is also a dispute about when documents to be produced as a result of the application of the search terms are to be produced. The plaintiffs propose that Martorello be required to produce all documents in accordance with the agreed upon terms in Exhibit 1 and the disputed terms in Exhibit 3 without further delay and without further review.[1] Martorello opposes production without further review and asserts that he is entitled to review the documents for privilege before producing them.
Having reviewed the positions of the parties, the proposed search terms that are in dispute, and their positions on the timing of production and on privilege review, and having heard the argument of counsel, the Court finds that:
(1) The agreed upon search terms in Exhibit 1 are appropriate and the parties have agreed that those search terms can be applied forthwith, and Martorello has agreed that all responsive documents produced in response to the application of those search terms can be produced by May 29, 2019, excepting documents as to which Martorello claims privilege; and
(2) Martorello contends that he is entitled to subject the documents to be produced pursuant to paragraph (1) above to a review for privilege, and the plaintiffs take the view that Martorello is not entitled to a privilege review, arguing that the time for filing a privilege log has passed; thus, whether Martorello may claim privilege on the documents to be produced using the search terms in Exhibit 1 must be briefed and decided; however, the search terms must be applied and all non-privileged documents must be produced on May 29, 2019, before the privilege issue is briefed; and
*2 (3) The search terms developed by the plaintiffs as reflected in Exhibit 3 were developed by using reasonable and accepted principles for the search of ESI and by comparing documents that Martorello has produced already to test whether the search terms would have produced those documents.[2] Martorello's objection is not that the plaintiffs' proposal is wrong; it is just that it will yield a large volume of documents. Martorello has offered no proof of undue burden or disproportionate endeavor. And, plaintiffs have shown that the result of the search, using Exhibit 3, is likely to produce relevant information pertaining to disputes to issues in this case;
(4) The limitations on search terms proposed by Martorello (as evidenced in the column labelled “Defendant's Proposal” in Exhibit 3) appear to be largely designed to reduce the number of documents to be produced using the search terms, and counsel for Martorello has advised that, while they prefer the modifications they have advanced in Exhibit 3, they are prepared to go forward with a review of documents produced as a result of applying search terms proposed by plaintiffs as set out in Exhibit 3; and
(5) Martorello urges that he should be permitted to produce the documents that are responsive to the result of applying the plaintiffs' search terms as outlined in Exhibit 3 subject to a privilege review and should not be required, as the plaintiffs contend, to produce the documents without reviewing them at all, and, the plaintiffs will be permitted to show why no privilege review is available to Martorello. However, production of non-privileged documents shall not be delayed pending resolution of that issue.
Accordingly, it is ORDERED that:
(A) the non-privileged documents to be produced pursuant to application of the search terms in Exhibit 1 shall be produced by May 29, 2019; and
(B) the non-privileged documents to be produced pursuant to application of the search terms in Exhibit 3 shall be produced by July 12, 2019, provided, however, the documents shall be produced pursuant to a rolling production which shall begin no later than June 4, 2019 and shall continue regularly thereafter (but not less frequently than a weekly production) until all documents have been produced by July 12, 2019; and
(C) the briefing on the privilege issues raised by Martorello shall proceed as follows:
(i) Martorello shall file his opening brief explaining why he is entitled to proceed with a privilege review by June 7, 2019; and
(ii) the plaintiffs shall file their response brief by June 17, 2019; and
(iii) Martorello shall file his reply by June 24, 2019.
The Court will advise whether argument is needed; and
(D) Martorello shall, with each production to the plaintiffs of non-privileged documents, deliver to the Court properly tabbed notebooks of the documents as to which privilege is asserted containing the privileged documents appropriately designated by tabs and preceded by an explanation, not to exceed one page, why the document is privileged. The previous production of privileged documents by Martorello was made difficult to review because each of the cover pages simply used boilerplate language about the privilege asserted and made no effort to explain why the individual document was covered by privilege. In respect of the production of privileged documents herein ordered, each document shall be accompanied by a cover explanation of why that particular document is entitled to privilege, making the description sufficient that the Court and the opposing party can understand the basis for the particular claim of privilege, and those descriptions shall not rely on boilerplate template language. A copy of the explanation of the privileged documents shall be provided to counsel for the plaintiffs.
*3 It is so ORDERED.
Richmond, Virginia
Footnotes
The Court has also reviewed certain filings related to the production of documents by Martorello (ECF Nos. 322, 390, 428, 458 and 485). It appears from those filings that the production by Martorello has been deficient, halting, and incomplete.
A detailed explanation of the process used by the plaintiffs was made at argument in the telephone conference on May 22, 2019.