Palmer v. Cognizant Tech. Sols. Corp.
Palmer v. Cognizant Tech. Sols. Corp.
2021 WL 3145982 (C.D. Cal. 2021)
July 9, 2021
Abrams, Paul L., United States Magistrate Judge
Summary
The court denied the plaintiffs' motion to compel the defendants to produce all documents that contain a search term without a responsiveness review. The court also declined to order an in camera review of the documents listed in the Chart and Exhibit H. However, the court did order the defendants to provide an amended privilege log for 1,473 entries and a Supplemental Log containing up to 50 entries for which plaintiffs requested further detail as to the basis for the privilege. ESI was taken into account when determining the basis for the privilege.
Additional Decisions
Christy Palmer, et al.
v.
Cognizant Technology Solutions Corporation, et al
v.
Cognizant Technology Solutions Corporation, et al
Case No.: CV 17-6848-DMG (PLAx)
United States District Court, C.D. California
Signed July 09, 2021
Counsel
Daniel A. Kotchen, Pro Hac Vice, Lindsey M. Grunert, Pro Hac Vice, Daniel Low, Kotchen and Low LLP, Washington, DC, Navid Soleymani, Navid Yadegar, Yadegar Minoofar and Soleymani LLP, Los Angeles, CA, for Christy Palmer, et al.Elizabeth Aislinn Dooley, Gibson Dunn and Crutcher LLP, San Francisco, CA, Katherine V. A. Smith, Lauren M. Blas, Theodore J. Boutrous, Jr., Gibson Dunn and Crutcher LLP, Los Angeles, CA, Matthew Thomas Sessions, Michele L. Maryott, Gibson Dunn and Crutcher LLP, Irvine, CA, for Cognizant Technology Solutions Corporation, et al.
Abrams, Paul L., United States Magistrate Judge
PROCEEDINGS: (IN CHAMBERS) Plaintiffs' Motion to Compel Discovery (ECF No. 149)
*1 On June 23, 2021, the parties in this purported class action filed a Joint Stipulation (alternatively “JS” (ECF No. 150)) in support of their positions regarding plaintiffs' Motion to Compel (“Motion” or “Mot.” (ECF No. 149)) defendants Cognizant Technology Solutions Corporation and Cognizant Technology Solutions U.S. Corporation (collectively “defendants” or “Cognizant”), to produce a Rule 30(b)(6) witness on topics related to defendants' document retention, collection, and review policies and practices, and to produce all non-privileged, newly-discovered documents that hit on any agreed-upon search term; and for the Court to review “in camera privilege log exemplars identified by Plaintiffs and order [defendants] to identify subject lines of logged emails.” (JS at 1). Plaintiffs also submitted the declaration of their counsel Daniel Kotchen (“Kotchen Decl.”) with exhibits; defendants submitted the declaration of their counsel Katherine V.A. Smith (“Smith Decl.”) with exhibits, and Matthew T. Sessions (“Sessions Decl.”) with exhibits. On June 30, 2021, the parties filed their Supplemental Memoranda (alternatively “Supp'l Mem.”). (ECF Nos. 151, 152). Having considered the pleadings submitted in connection with the Motion, the Court has concluded that oral argument will not be of material assistance in determining the Motion. Accordingly, the hearing scheduled for July 14, 2021, is ordered off calendar. See Local Rule 7-15.
By way of background, this is an employment discrimination class action in which plaintiffs allege that defendants maintain a pattern or practice of employment discrimination in favor of individuals of South Asian race and Indian national origin. (See ECF No. 137).
The Court will examine the issues using the same general legal standard set forth in its June 10, 2020, discovery Order. (ECF No. 102).
As discussed below, plaintiffs' Motion (ECF No. 149) is granted in part and denied in part.
Rule 30(b)(6) Deposition
On April 22, 2021, plaintiffs served defendants with a Rule 30(b)(6) deposition notice (“Depo Notice”), seeking testimony about defendants' document preservation policies and practices, the steps taken by defendants to collect and preserve documents relevant to this litigation, and the steps taken by defendants to review documents for responsiveness, including the names, titles, and locations of the people involved in collecting and reviewing documents (“Topic No. 1”). (JS at 6). The Depo Notice specifically stated that Topic No. 1 included the issues identified in Exhibit A to the Depo Notice that are at issue herein. (Id. (citing Kotchen Decl. ¶ 2)). Issue number 1 sought testimony on the following:
[C]orporate document preservation practices, including but not limited to specific retention periods for different types of documents, what back-ups are made and where they are stored, corporate guidelines regarding document preservation (e.g., for Sarbanes-Oxley purposes, because of federal agency investigations like that conducted by the EEOC, for affirmative action purposes, for litigation, etc.), and any automatic document deletion that typically occurs.
(Id.). Issue number 3 sought testimony on the following:
[Defendants'] efforts to preserve documents for this case, including, but not limited to, what back-ups were retained, what automatic document deletion practices were altered (and how), what documents were collected and when, when steps were taken to preserve documents, who (by title and location) was involved in the document preservation, and what steps each individual took for the document preservation.
(Id. at 7). Issue number 4 sought testimony on the following:
The steps [defendants] took to collect documents for review, including the process by which the documents were collected, who was involved in the collection (by title and location), what repositories of responsive documents existed for each custodian, and what was collected for each custodian.
(Id. at 8).
Plaintiffs' Position
*2 On September 18, 2017, plaintiffs filed this case and, upon service, sent defendants a “detailed document-preservation letter.” (Id. (citing Kotchen Decl. ¶ 4)). On August 13, 2019, plaintiffs issued a Rule 30(b)(6) deposition notice concerning, among other things, defendants' document retention and preservation policies. (Id. at 9 (citing Kotchen Decl. ¶ 6)). Plaintiffs state that defendants “refused to participate in the deposition,” and instead “preferred ... to provide written deposition topic responses and committed to fully investigating each topic.” (Id.). Plaintiffs further state that “[a]t the [District Judge's] encouragement during an October 18, 2019 hearing, Plaintiffs agreed to forego the deposition and accept Cognizant's written responses.”[1] (Id. (citing Smith Decl. Ex. 11 at 10, 16-17)). According to plaintiffs, defendants then provided “written responses with limited document preservation information,” and “would not identify instances in which documents were routinely deleted and what exactly was done to preserve documents, except to acknowledge that [they] had ‘issued appropriate legal holds’ to specific servers.” (Id. (citing Kotchen Decl. ¶¶ 7-8)).
On July 14, 2020, the parties agreed to a “final list of search terms for ESI custodians.” (Kotchen Decl. ¶ 15). As of April 22, 2021, defendants had produced “custodial ESI” from 20 of the 23 agreed-upon custodians. (Id. ¶ 10). On that same date, plaintiffs sent defendants a letter (along with the subject Rule 30(b)(6) Depo Notice) identifying “obvious irregularities for 18 of the 20 custodians from whom [defendants] produced [ESI] documents.” (Id.). They “invited” defendants to “work informally with Plaintiffs to address the list of issues appended to the Rule 30(b)(6) deposition notice ... but cautioned that Plaintiffs intended to proceed with the deposition if [their] questions were not fully answered.” (Id.).
*3 Plaintiffs identified “three types of document irregularities [that] were readily apparent” in defendants' production: (1) some custodians produced almost no documents for many of the years between 2014 and 2020; (2) some custodians had documents missing for a single year or two, “as if someone chose a discrete time period in which to conceal or delete documents”; and (3) some custodians “produced almost no documents, except for a small number in a year or two.” (JS at 9-10 (citing Kotchen Decl. ¶ 13 Ex. 1; see also id. at 10 – “Custodian Exemplar Chart” (“Chart”))).
On May 4, 2021, defendants completed their production of electronically stored information (“ESI”) for 20 of the 23 agreed-upon custodians and produced a privilege log. (Id. at 9 (citing Kotchen Decl. ¶ 9), 18).
On May 6, 2021, defendants served objections to the April 22, 2021, Depo Notice, but only as to issue numbers 1, 3, and 4 as identified in Exhibit A of the Depo Notice. (Id. (citing Kotchen Decl. ¶ 3)). They objected to each of these three issues on the same grounds: vague and ambiguous with respect to one or more of the issue's undefined terms; not relevant to the subject matter of the litigation; fails to describe with reasonable particularity the matters for examination; unreasonably broad and unduly burdensome; calls for information protected by the attorney-client information, the work product doctrine, or other applicable privileges; no good cause exists to justify inquiry into issues of document preservation; and the issue could be addressed in a less burdensome way, such as through written discovery. (Id. at 6-7).
On May 13, 2021, the parties had a telephonic meet and confer about the Depo Notice and, during that conference, defendants informed plaintiffs for the first time “that a discovery problem existed concerning Cognizant's collection of documents from its Office 365 server.” (Id. at 11 (citing Kotchen Decl. ¶ 11)). Defendants also “committed to providing written responses to Plaintiffs' list of issues appended to” the Depo Notice, which it subsequently emailed to plaintiffs on May 18, 2021. (Id. (citing Kotchen Decl. ¶ 12)). In their written response, defendants explained that they “maintained limited email space on [their] servers for each employee, which required employees to either routinely delete emails or to otherwise save emails on their personal hard drives as .pst files.” (Id. (citing Kotchen Decl. ¶ 12)). They also explained that beginning in 2017, they had “started transitioning employees to a single Office 365 server, and ... collected custodial ESI from only the 365 server, mistakenly believing that it contained all employee emails, including emails stored in .pst files on employee hard drives.” (Id. (citing Kotchen Decl. ¶ 12)). Plaintiffs state that defendants did not disclose “whether the Office 365 server has size limits for individual employee email accounts.” (Id.).
Based on defendants' practice of using email account server size limits to encourage the deletion of documents, and “the temporal document production trends for certain custodians” that “suggests that documents were destroyed as opposed to taken off the server and organized in .pst files on hard drives,” plaintiffs “now harbor grave spoliation concerns.” (Id. at 11-12).
Plaintiffs state they are seeking an order compelling defendants to participate in a Rule 30(b)(6) deposition to address the following six issues, which they contend are “substantially narrower than ... the broader Rule 30(b)(6) topics” in plaintiffs' Depo Notice:
1. Who at Cognizant, including this case's custodians, received a litigation hold notice, when, and how was the notice transmitted?
2. What were the email account size limits that applied to each custodian, and which servers (or off-server locations) stored each custodian's email and when?
3. What custodians were interviewed about where they stored documents, what were the custodians' document deletion practices, and what custodian emails or .pst files were deleted from hard drives or servers prior to collection?
4. Separate from emails, what types of documents did the custodians store or access on shared servers and on personal hard drives, and how were folders organized in which files were stored (e.g., did departments maintain shared folders to store documents and, if so, what was the folder organization)?
5. What are the details of Cognizant's transition to a new server, what was lost from the old server, and what happened to the prior server(s) and backups to the prior server(s)?
6. Identify all factors that caused or contributed to the loss or deletion of potentially responsive ESI identified in Plaintiffs' litigation hold letter from any relevant custodian or data source after Cognizant received Plaintiffs' litigation hold letter.
(Id. at 12-13; Pls.' Supp'l Mem. at 1).
*4 Plaintiffs assert that their Depo Notice, including Exhibit A to the Depo Notice, “covers each of the above issues, as the notice covers Cognizant's preservation practices, including any automatic deletion that typically occurs; efforts to preserve documents; document deletion practices; and repositories of responsive documents that existed for each custodian.” (JS at 13 (citing Kotchen Decl. ¶¶ 2-4)). They also argue that all of the above information is discoverable. (Id. (citing, among other cases, Cannata v. Wyndham Worldwide Corp., 2011 WL 3495987, at *3 (D. Nev. Aug. 10, 2011) (noting that “plaintiffs seek answers concerning what has actually happened in this case, i.e., when and to whom the litigation hold letter was given, what kinds of categories of ESI were included in defendants' litigation hold letter, and what specific actions defendants' employees were instructed to take to that end,” and that although the litigation hold letters “may be privileged, the basic details surrounding the litigation hold are not”))).
Defendants respond that they have reviewed nearly 300,000 custodial documents and produced nearly 156,000 such documents. (Id. at 17-18 (citing Kotchen Decl. Exs. 1, 4)). They state that 20,000 pages of documents were produced on January 11, 2021, and more than 200,000 pages were produced on April 2, 2021. (Id. (citing Smith Decl. Exs. 1, 2)). On April 9, 2021, they produced nearly another 200,000 pages, “almost all of the remaining custodial ESI, save for documents still undergoing or related to a final privilege review and documents for three final custodians, about whom there were separate discussions between the parties.” (Id. at 18 (citing Smith Decl. Ex. 3)). On May 4, 2021, they produced their privilege log and the remainder of the custodial ESI, “including those [documents] partially redacted for privilege.” (Id. (citing Smith Decl. Ex. 4)).
Defendants assert that when they received plaintiffs' April 22, 2021, letter and Depo Notice, they immediately began to investigate the “possible irregularities in the number of documents produced by custodian and by year.” (Id. at 19 (citing Smith Decl. Ex. 5)). On May 18, 2021, they responded in writing to each of the nine topics in Exhibit A to the Depo Notice. (Id. (citing Smith Decl. Ex. 6)). In their response, defendants acknowledged the issue with the transition to Office 365, and informed plaintiffs that they “are now proceeding to collect and image the laptops of the 20 custodians from whom documents have already been produced in order to obtain any .pst files that were saved to a particular custodian's laptop rather than to Office 365.” (Id. at 19-20 (citing Smith Decl. Ex. 6)). Defendants stated that they were “moving forward with production of custodial ESI from the remaining three custodians,” and that the responsiveness review is already complete for one custodian, and production should occur within the “next week or so.” (Id. at 20 (citing Sessions Decl. ¶ 4)). The “responsiveness and privilege review” of the remaining two custodians was “currently underway.” (Id. (citing Sessions Decl. ¶ 4)).
*5 Defendants contend that plaintiffs' six “new” Rule 30(b)(6) deposition issues were not previously noticed and reiterate that they have already responded in writing to each of plaintiffs' previously-noticed topics. (Id. at 16 (citing Smith Decl. Exs. 6, 7)). They assert that some of the six “new” topics are “explicitly predicated upon information Defendants provided in their written responses,” and because they heard nothing from plaintiffs after completing their written responses, they were surprised to receive plaintiffs' portion of the Joint Stipulation without plaintiffs having previously reached out “to request a deponent or note their dissatisfaction with the written responses.” (Id.). Defendants state that they have not refused to provide a deponent and, in fact, on June 15, 2021, they agreed to produce a Rule 30(b)(6) deponent. (Id. (citing Smith Decl. Ex. 8)). They argue that plaintiffs nevertheless insisted on continuing with this Motion, which suggested to defendants that “Plaintiffs seek agreement to depose a Rule 30(b)(6) witness without regard for appropriate privilege objections.” (Id. (citing Smith Decl. Ex. 9)).
Defendants further assert that if plaintiffs had raised their request “prior to serving their portion of the joint stipulation, Defendants could have worked with Plaintiffs to resolve questions related to the appropriate scope.” (Id. at 16-17)). They submit that plaintiffs' Motion should be denied because their “request is premature, some of the topics are ‘noticed’ for the first time in this joint stipulation, and some portions of the topics are protected by privilege.” (Id.).
Defendants argue that to the extent plaintiffs were dissatisfied with defendants' response to the 2019 Rule 30(b)(6) deposition notice, “they should have promptly renewed their request for a deposition as to particular topics, issued further written discovery, or moved the Court to compel a response,” and “cannot now blame Defendants for [plaintiffs'] own lack of diligence.” (Id. at 21). They also argue that there is “nothing problematic about a company with size limitations on its email servers sending a routine email to an employee ... to inform him that he is nearly at his usage limit and will need to make space in his mailbox.” (Id.).
Defendants also argue they “have not had the opportunity to meet and confer to discuss the [six] new topics raised for the first time in this joint stipulation.” (Id. at 22). They state that on June 15, 2021, they offered to provide a witness on these topics and asked plaintiffs to withdraw this issue from the Joint Stipulation, but plaintiffs declined, “instead demanding that any agreement require the deponent to testify ‘fully’ on these topics, some of which are inextricably linked to attorney-client privileged information, including inquiries into litigation hold notices and document collection and production processes and decisions.” (Id. at 23 (citing Smith Decl. Ex. 8)). Defendants suggest that “the appropriate course of action is for Defendants to provide written discovery into the non-objectionable scope of the noticed topics,” and state that they are “concerned that providing a witness on these issues will only invite Plaintiffs to infringe on Defendants['] rights with respect to privilege.” (Id.).
In their Supplemental Memorandum, defendants state their concern that the “breadth of the topics in the Rule 30(b)(6) notice along with serious privilege concerns suggest that written discovery as to the non-objectionable topics would be a more appropriate process” and be “similar to [the process] countenanced by Judge Gee in connection with a prior Rule 30(b)(6) notice in this case.” (Def'ts' Supp'l Mem. at 2 (citations omitted)).
Plaintiffs reply that the six Rule 30(b)(6) deposition topics at issue are “clearly encompassed within” the broader Rule 30(b)(6) topics in plaintiffs' Depo Notice, and are “substantially narrower than” those topics. (Pls.' Supp'l Mem. at 1). They acknowledge that the topics are predicated upon defendants' informal response to the Depo Notice, but state “that is because Plaintiffs used the responses to narrow the deposition scope so the deposition could proceed expeditiously.” (Id.). They argue that allowing defendants to provide written responses to these topics will deny plaintiffs the ability to ask “probing questions necessary to discover critical facts,” and submit that none of the six topics implicates privileged material or attorney work product. (Id. at 1-2).
Analysis
*6 Notwithstanding plaintiffs' statistics regarding alleged “production irregularities,” or the length of time it has taken defendants to produce responsive ESI documents, the Court finds that the parties' conjectures about each other's motives and actions (e.g., plaintiffs are attempting to obtain attorney-client information through the Rule 30(b)(6) deposition, or defendants are actively engaged in spoliation of evidence and deliberate delay) are little more than speculation and unwarranted finger pointing.
The Court notes that defendants have represented to the Court that they have not declined to produce a Rule 30(b)(6) witness and, indeed, on June 15, 2021, they agreed to produce a Rule 30(b)(6) deponent. (Smith Decl. Ex. 8).
The Court determines that the six issues on which plaintiffs seek to depose defendants' Rule 30(b)(6) witness(es) are subsumed in the topics and issues presented in the Depo Notice and, therefore, the fact that they were not specifically brought up during the meet and confer process is not fatal to this Motion. Additionally, plaintiffs have presented enough evidence regarding defendants' issues with collecting ESI – based largely on defendants' transition to Office 365 – that the Court finds a Rule 30(b)(6) deposition on five of the six issues is warranted. While there typically may be “nothing problematic about a company with size limitations on its email servers sending a routine email to an employee... to inform him that he is nearly at his usage limit and will need to make space in his mailbox,” in this case, there apparently was a litigation hold in place and plaintiffs are entitled to non-privileged information as to “what kinds and categories of ESI [defendants'] employees were instructed to preserve and collect, and what specific actions they were instructed to take to that end,” as well as what ESI, if any, including emails, may have been missed during the document collection process, or lost as a result of defendants' transition to Office 365. See Cannata, 2011 WL 3495987, at *2-3.
Based on the foregoing, plaintiffs' Motion to compel the deposition of a Rule 30(b)(6) deponent knowledgeable on five of the six stated issues is granted in part.
Specifically, the deposition is limited to the following five narrowed issues, as modified by the Court:
1. Who at Cognizant, including this case's custodians, received a litigation hold notice, when, and how was the notice transmitted?
2. What were the email account size limits that applied to each custodian, and which servers (or off-server locations) stored each custodian's email and when?
3. What custodians were interviewed about where they stored documents, what were the custodians' document deletion practices, and what custodian emails or .pst files were deleted from hard drives or servers prior to collection?
4. What are the details of Cognizant's transition to a new server, what was lost from the old server, and what happened to the prior server(s) and backups to the prior server(s)?
5. Identify all known factors (other than the transition to the Office 365 server) that caused or contributed to the loss or deletion of potentially responsive ESI identified in Plaintiffs' litigation hold letter from any relevant custodian or data source after Cognizant received Plaintiffs' litigation hold letter.
The Court finds that plaintiffs' topic number 4[2] is vague and ambiguous as worded, fails to describe with reasonable particularity the matters for examination, and is unreasonably broad and unduly burdensome. As such, it is not relevant and proportional to the needs of the case. Accordingly, plaintiffs' Motion is denied as to plaintiffs' topic number 4.
*7 The Rule 30(b)(6) deposition on the above topics shall take place no later than August 6, 2021. The deposition shall not exceed 4 hours exclusive of breaks and shall be limited to nonprivileged matters encompassed in the five topics set forth above. The Court anticipates that the parties, working together cooperatively and in good faith, will be able to resolve the issue of scheduling the Rule 30(b)(6) deposition as well as any other conditions of that deposition (e.g., in-person or via videoconference), without the need for Court intervention.
Motion to Compel Defendants to Produce Non-Privileged Documents That Hit on a Search Term Without a Responsiveness Review
Plaintiffs are also seeking an order compelling defendants “to produce non-privileged documents that hit on an agreed-upon search term.” (JS at 14). They explain that on July 14, 2020, the parties agreed to a list of search terms that defendants would apply to custodial ESI. (Id. (citing Kotchen Decl. ¶ 15 Ex. 3)). They state that defendants “then reviewed for responsiveness and privilege any document that contained at least one search term,” a process that took almost a year, and for which, at the time of the Motion, there were still three agreed-upon custodians whose ESI documents had yet to be produced. (Id.).
Plaintiffs assert that based on data defendants provided to plaintiffs, “reflecting, by custodian, the number of documents that contain at least one search term and, of these search term documents, the number of documents produced in discovery,” defendants' withholding of documents based on responsiveness “also appears problematic.” (Id. (citing Kotchen Decl. ¶ 13 Ex. 1)). Plaintiffs note that, overall, defendants produced only 52% of the documents that hit on a search term and assert that this is a “surprisingly low production rate, considering the parties agreed to only highly relevant search terms.” (Id. (citing Kotchen Decl. ¶¶ 15, 16 & Exs. 3, 4)). They also deem the “variability by custodian of the percentage of documents produced to Plaintiffs” to be “particularly problematic” as a “couple custodians have a high document production rate consistent with Plaintiffs' expectations given the relevance of the search terms used to collect documents,” but “most custodians have inexplicably low production rates considering the relevance of the search terms.” (Id. at 14-15 (citations omitted)).
Plaintiffs suggest that ordering defendants to “produce non-privileged documents that contain at least one search term, without first reviewing for responsiveness,” will result in speed of production and fairness. (Id. at 15). They point out that fact discovery closes on September 16, 2021, and plaintiffs have been waiting for defendants to complete their custodian ESI productions and will need time to review the documents before taking depositions. (Id.). Thus, ordering defendants to produce all non-privileged documents containing a search term is appropriate in light of the “undeniable relevance of the search terms”; the near certainty that relevant documents have already been destroyed; and defendants' “apparent aggressive discovery withholding practices” as reflected in plaintiffs' Chart. (Id. (citing Kotchen Decl. ¶ 16 Ex. 4)).
Defendants reject plaintiffs' proposal that would require defendants to produce all newly-discovered custodial ESI without first doing a responsiveness review. (Id. at 17). They state that this is the first time plaintiffs have requested this specific relief as it was not contained in plaintiffs' Local Rule 37-1 letter. (Id. at 24 (citing Smith Decl. Ex. 9)). They also note that Local Rule 37-1 requires the moving party's letter to “specify the terms of the discovery order to be sought,” and the Motion, therefore, should be denied on this basis alone. (Id.).
*8 Defendants also reject this proposal on the merits because “a responsiveness review occurs concurrently with a privilege review,” which must still be completed, and because the “allegedly ‘low’ responsiveness rate across all custodians and varying responsiveness rates across custodians, are not evidence of an improper responsiveness review.” (Id. at 17, 25).
Defendants argue that the statistics calculated by plaintiffs tend to reflect that defendants “agreed to an overly broad set of search terms to run against most custodians, and the evidence backs that up.” (Id. at 17, 25-26). They further contend that plaintiffs' suggestion that a “52% responsiveness rate overall or varying rates across custodians evinces an improper review,” or “bad intent,” is “pure conjecture.” (Id.). They explain that there were many false positives with respect to some of the search terms (e.g., Cox, and “Equal Employment”), which yielded numerous results that were not responsive to the discovery requests. (Id. at 26). They also explain that differing responsiveness rates across custodians also is not evidence that defendants conducted an improper responsiveness review as those rates could be explained by things such as the individual's particular position, or the result of a large number of false positives in an individual's documents. (Id. at 26-27).
Defendants point out that “if Plaintiffs are correct and documents have in fact been lost (a proposition with which Defendants do not agree), then ordering production of all documents that hit on a search term would not remedy the issues because search terms cannot hit on documents that do not exist.” (Id. at 27 (emphasis in original)).
They argue that “Plaintiffs' request for this ‘document dump’ in the name of efficiency and fairness lacks relationship to either.” (Id. at 3-4). That is, no time is saved because the documents must still be reviewed for privilege, and a production without a responsiveness review “is not more ‘fair’ to either party because the responsiveness reviews Defendants have performed to date were entirely proper and Plaintiffs have offered no evidence to the contrary.” (Id.). They contend that a party “only has an obligation to produce responsive documents,” and assert that “relying upon search terms alone will almost always result in the capture of non-responsive documents, which may then be reviewed and removed from any production.” (Id. at 5 (emphasis in original)).
Plaintiffs reply that at the time of their Local Rule 37 letter, defendants had not informed plaintiffs that additional documents existed and, therefore, plaintiffs could not have included this relief in their letter. (Pls.' Supp'l Mem. at 2).
Plaintiffs also take issue with defendants' argument that “the Court should not be concerned about low production rates for documents that hit on search terms.” (Id. at 3). They cite as an example the production rate of only 31% for an employee with “responsibility for Affirmative Action and EEO compliance” and suggest that “the vast majority of her documents that hit on search terms would likely be responsive, even taking into account the possibility of some mis-hits.” (Id.).
Plaintiffs also submit that defendants' argument that a privilege review alone would not be significantly faster than a privilege and responsiveness review “belies common sense and the experience of anyone who has participated in document review.” (Id.). They state they are “deeply troubled by Cognizant's vague reference to its ‘slow’ collection of laptops and refusal to share additional information with Plaintiffs, as it seems clear that – months after being alerted to the discovery problems – laptops remain outstanding, that documents likely continue to be lost, and that Cognizant's counsel is exhibiting no urgency or forthrightness about a gravely serious discovery misconduct issue.” (Id.).
*9 After reviewing the parties' positions, the Court determines that plaintiffs' arguments that the statistics are “surprisingly low,” or that “most custodians have inexplicably low production rates considering the relevance of the search terms,” and other such statements, lack foundation. The Court further finds that defendants' explanations for the statistical differences between and among defendants' custodians with respect to the number of documents produced by each are reasonable and persuasive.
Additionally, plaintiffs' argument that compelling defendants to produce all documents that contain only one search term without a responsiveness review would speed the production and be fairer, is not the standard under Rule 26 for discovery, which provides that discovery may be obtained “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. P. 26(b)(1). The Court will not compel defendants to produce any document simply because it contains a search term whether or not it is responsive to the discovery request, or, by extension, whether or not it is relevant and proportional to the needs of the action.
Plaintiffs' Motion to compel defendants to produce all documents that contain a search term without a responsiveness review is denied.
Privilege Log
Plaintiffs generally contend that defendants' 405-page privilege log, with over 7,500 entries, has two problems: (1) entries reflecting no or limited attorney involvement; and (2) vague descriptions. (JS at 29). Defendants respond that plaintiffs failed to meet and confer with defendants with respect to the privilege log, and this failure “is fatal to their ability to compel the production of any additional information on the log or in camera review.” (Id. at 33).
Entries Reflecting No or Limited Attorney Involvement
Plaintiffs argue that of the 3,518 communications that defendants “fully withheld as attorney-client privileged, 1,473 have no attorney on the ‘from,[’] ‘to,’ or ‘cc’ line”; 629 of the 1,473 list only “Cognizant Legal Department” in the “Attorney Basis for Privilege” column of the log; an additional 360 “merely CC counsel”; and the “vast majority of those that do name an attorney involve in-house rather than outside counsel – only 16 of these entries list ‘Outside Counsel’ or the name of an outside law firm in the ‘Attorney Basis for Privilege’ column.” (Id. at 29 (citing Kotchen Decl. ¶ 17)).
Plaintiffs state that it is “hard to fathom that the primary purpose of all of these communications among non-attorneys was to secure legal advice, and inconsistent redactions that Plaintiffs have come across in Cognizant's productions demonstrate the Plaintiffs are right to be suspicious.” (Id. (citing Kotchen Decl. ¶¶ 18-19 & Exs. 7, 8)). They also surmise that “[g]iven the sheer volume of entries on the privilege log with limited attorney involvement, these examples likely indicate a wider trend among the fully withheld documents.” (Id. at 30).
Defendants describe plaintiffs' challenges to defendants' privilege log as meritless. (Id. at 38). They state that they listed “Cognizant Legal Department” as the basis for the privilege on certain documents because “that is the precise term and group referred to in the documents at issue.” (Id.). They assert that this is sufficient to establish privilege. (Id. at 39 (citations omitted)). They also recognize that simply cc'ing an attorney on a communication, “without more, does not render a communication privileged,” but state that they have not designated any document in the log to be privileged “merely because an attorney was CC'd.” (Id. at 40). They state that they included documents on the privilege log only “if the ‘primary purpose’ of the communication was to provide or receive legal advice.” (Id. (citing Sessions Decl. ¶ 18)). They explain that they included the “to,” “from,” and “cc” information on the privilege log “for the most recent communication in a given email chain,” and state that “[i]n many instances, the attorney initiated the conversation to provide legal advice or was the person in the initial ‘From’ line so that others on the conversation could receive legal advice.” (Id. (emphasis in original)). Defendants assert that because the primary purpose of these communications was the provision and receipt of legal advice, they have been properly designated as privileged. (Id. (citation omitted)).
*10 Defendants also argue that to the extent plaintiffs complain that documents on the log “only involve in-house, rather than outside counsel,” it is “indisputable that Defendants are allowed to seek legal advice from their in-house counsel without it being subject to immediate and unquestioned scrutiny from Plaintiffs' counsel and/or the Court.” (Id. at 41 (citation omitted)).
Defendants state that they are “more than willing to meet and confer” with plaintiffs with respect to documents on the log for which an attorney is merely cc'd or appears to be missing altogether, as well as to provide further detail on a “reasonable number of documents” as to how the document is privileged. (Id.). They note that they “only ask that it be done on a document-by-document basis, as the law requires.” (Id. (citing Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 631 (D. Nev. 2013))).
Vague Descriptions
Plaintiffs also argue that defendants' descriptions “are too vague for Plaintiffs to assess the claimed privilege.” (Id. at 30). For instance, they note that the privilege log contains descriptions such as “regarding adverse impact,” “regarding hiring,” “regarding terminations,” “regarding immigration,” “regarding contract drafting and review,” “regarding affirmative action,” “regarding personnel issues,” “regarding promotions,” and “regarding analysis of business strategy.” (Id.). They argue that such descriptions violate the mandate of Rule 26(b)(5)(A)(ii), which requires a party “to describe the documents in a manner sufficient to enable other parties to assess the claimed privilege.” (Id. (citation omitted)).
During the parties' meet and confer conference, plaintiffs asked defendants to provide email subject lines and document titles, but defendants refused to do so. (Id. at 31 (citing Kotchen Decl. ¶ 22)). Defendants instead proposed meeting and conferring about a subset of entries, but plaintiffs deem that proposal to be “unworkable, given the size of the privilege log and the extent of the deficiencies.” (Id.). Plaintiffs submit that it “is not practical to meet and confer as to every issue and meeting and conferring as to a subset would leave a host of issues unaddressed.” (Id.).
Plaintiffs suggest that defendants should be “compelled to produce email subject lines and document titles for the entries on its privilege log, as requested.” (Id. at 32). They state that the “burden of adding this information would be minimal, as would any burden from redacting privilege information where necessary – there are 4,797 fully-withheld entries and presumably Cognizant would be able to determine from the face of the privilege log which of those have subject lines and document titles that require redactions.” (Id. at 32-33).
Defendants respond that their privilege log descriptions are more than sufficient and, in fact, courts (including, they note, this Court) have “endorsed privilege log entries that were equally or even less detailed than the entries here.” (Id. at 41-42 (citations omitted)). In their Supplemental Memorandum, defendants assert that plaintiffs have no “real evidence demonstrating that privilege or work product doctrine does not apply” to the documents on the log. (Def'ts' Supp'l Mem. at 5).
Plaintiffs reply that they have sufficiently met and conferred about their request to include subject lines for emails on the privilege log, as the May 10, 2021, Local Rule 37 letter “explicitly challenged Cognizant's vague privilege descriptions and Cognizant refused to provide more specific descriptions” during the parties' May 20, 2021, meet and confer call. (Pls.' Supp'l Mem. at 5). They assert that “less than an hour after the parties' May 20 call,” plaintiffs suggested as a compromise that defendants provide email subject lines and document titles, “an approach that would address Cognizant's undue burden objection, but Cognizant refused that request a week later.” (Id. (citing JS at 31, 35)).
*11 Plaintiffs now suggest that in order to “minimiz[e] the burden to Cognizant,” this Court should “review a subset of the withheld and redacted documents identified above in camera, and provide guidance as to merits (or lack thereof) of Cognizant's withholdings.” (Id.). To that end, plaintiffs prepared “a chart with 50 entries on Cognizant's privilege log that exemplify the issues described above for the Court's review.” (Id. (citing Kotchen Decl. ¶ 23 Ex. 11)).
Defendants argue that in camera review is not justified because plaintiffs “have failed to meet the Supreme Court's standard justifying such an extreme measure,” as plaintiffs “have not presented sufficient evidence demonstrating that the attorney-client privilege or work product doctrine does not apply to the documents at issue (nor could they, given that they refused to meaningfully meet and confer about any documents).” (JS at 33, 37 (citing United States v. Reynolds, 345 U.S. 1, 10, 73 S. Ct. 528, 97 L. Ed. 727 (1953))). According to defendants, before in camera review may be permitted, “ ‘the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person’ ... that in camera review of the materials may reveal evidence to establish that the attorney-client privilege does not apply.” (Id. (citing United States v. Zolin, 491 U.S. 554, 572, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989))). Defendants assert that plaintiffs failed to make such a factual showing, and it appears that they have “picked these documents seemingly at random in the hopes that the Court will find something wrong with Defendants' privilege designations.” (Id.). They further assert that plaintiffs have no “real evidence demonstrating that privilege or work product doctrine does not apply.” (Def'ts' Supp'l Mem. at 5).
Defendants state that the Rule 37 letter did not include plaintiffs' “purported concerns regarding log entries that involve in-house rather than outside counsel,” and “most troubling, Plaintiffs never provided Defendants with the list of fifty privilege log entries (which they now ask the Court to review in camera).” (JS at 36). Defendants contend that “[t]his is precisely what Defendants asked Plaintiffs to provide during the meet and confer process, and which Plaintiffs refused to provide on the ground that collecting a subset of documents on which the parties could meet and confer would be too time-consuming and burdensome.” (Id. (emphasis in original) (citing Sessions Decl. ¶ 11)). They argue that this “warrants close scrutiny as Plaintiffs have put the cart well before the horse in seeking in camera review without even giving Defendants the opportunity to resolve Plaintiffs' concerns about these fifty specific documents without the need for court intervention.” (Id.). Defendants suggest that the Court “should order the parties to further meet and confer on the fifty documents raised for the first time in Plaintiffs' attorney's declaration before proceeding any further.” (Id.).
Plaintiffs reply that the law does not require them to provide the Court a “ ‘document-by-document list of objections’ before in camera review can proceed, ... particularly when entire categories are at issue.” (Pls.' Supp'l Mem. at 4). They contend they have made a sufficient factual showing to support in camera review by identifying “a large number of non-attorney communications and documents in which an attorney was merely copied, which this Court has found warrants in camera inspection.” (Id. (citing In re Grand Jury Invest., 974 F.2d 1068, 1074 (9th Cir. 1992); Applied Med. Res. Corp. v. Ethicon, Inc., 2005 WL 6567355, at *2 (C.D. Cal. May 23, 2005) (noting that plaintiff “met the minimal threshold” by showing “log entries for several documents [that] fail[ed] to identify any attorney involved in the communication” and “documents in which an attorney was one of many recipients[.]”))). Plaintiffs also point to two exhibits that “contain the exact same communications involving Ann Brown and Raghunatha Guduri, as the emails include the same author/recipients with identical time stamps, meaning that the unredacted information in Exhibit 8 can be used to discern what's contained in the redacted information in Exhibit 7.” (Id. (citing Pls.' Supp'l Mem. Ex. E)).
*12 Plaintiffs observe that defendants used the Protective Order in this action to “claw-back” a document that is “clearly non-privileged ... [and] represents an effort by Cognizant to shield from discovery an entire category of information that is of particular relevance in a discrimination case” by identifying the redacted version on the privilege log as “Email requesting legal advice regarding personnel issues.” (Id. at 4-5 (citing id. Exs. F, G)). Based on “Cognizant's use of the Protective Order's claw back feature to prevent Plaintiffs from sharing with the Court a copy of the document that Cognizant claims was inadvertently produced, Plaintiffs respectfully request that the Court either substitute in or otherwise add to any exemplar in camera review the six documents identified in Exhibit H, which consist of five documents from Ms. Israel's [the person responsible for Affirmative Action and EEO compliance] files as well as a corporate policy withheld as privileged.” (Id. at 5).
Analysis
The Court declines to shoulder what is the parties' burden to bear in the first instance. Even if plaintiffs are correct that having the Court conduct an in camera review of the 50 documents listed in its Chart and the additional six documents identified in Exhibit H would “minimiz[e] the burden to Cognizant” (and the Court makes no such finding), plaintiffs have not sufficiently demonstrated a “factual basis adequate to support a good faith belief by a reasonable person” that in camera review of the materials may reveal evidence to establish that the attorney-client privilege does not apply. Zolin, 491 U.S. at 572. Accordingly, plaintiffs' request for in camera review of the 50 documents listed in its chart (Kotchen Decl. Ex. 11) and the additional six documents identified in Exhibit H is denied.
However, with respect to privilege log entries for which no attorney has been indicated on the from, to, or cc field or, for a limited number of entries as to which plaintiffs request further clarification as to how the document is privileged, plaintiffs' Motion is granted in part.
No later than July 30, 2021, defendants shall provide an amended privilege log for the 1,473 entries on the privilege log that have no attorney in the “from,” “to,” or “cc,” line, indicating how the document is attorney-client privileged or otherwise protected sufficient to enable plaintiffs to determine the basis for the privilege. This includes, but is not limited to, providing the name of the attorney(s) involved and stating where in the email chain/document the attorney(s) was involved (e.g., “from,” “to,” or “cc”), as well as the date the attorney's name appeared in the subject log entry, and providing any other information necessary to enable plaintiffs to determine the basis for the privilege.
No later than July 30, 2021, plaintiffs may identify up to 50 entries on the privilege log for which they request further detail as to the basis for the privilege. No later than August 13, 2021, defendants shall provide a Supplemental Log containing those 50 entries and an additional description as to the basis for the privilege asserted sufficient to enable plaintiffs to further assess the claimed privilege.
The parties are expected to work cooperatively and in good faith with respect to this procedure and to resolve any dispute, if any arise, resulting from this process without the need for Court intervention. The Court will not consider any motion resulting from this process unless it is convinced that the parties met and conferred in good faith, pursuant to Local Rule 37.
IT IS SO ORDERED.
Footnotes
At the hearing, the District Judge noted that “in the interest of thoroughness, I suppose the plaintiffs would want at some point to have some kind of verification that what you're providing them is accurate so it seems to me that can be happening in stages.” (Smith Decl. Ex. 11 at 10). The District Judge also specifically stated that she “expect[s] discovery to be resolved in a fast and efficient fashion.” (Id. at 14).
Topic number 4 stated: “Separate from emails, what types of documents did the custodians store or access on shared servers and on personal hard drives, and how were folders organized in which files were stored (e.g., did departments maintain shared folders to store documents and, if so, what was the folder organization)? (JS at 12).