*1 Pending before the Court is Plaintiff's Motion to Compel Discovery, filed on September 16, 2021. (Doc. 44). Defendant filed a response in opposition. (Doc. 46). For the reasons set forth below, Plaintiff's motion (Doc. 44) is GRANTED in part and DENIED in part.

Given the nature of the disputed issues raised in the pending motion and in the interests of judicial economy and efficiency, the Court dispenses with any unnecessary recitation of the procedural or factual background of the case.

Rule 26(b)(1) governs the scope of permissible discovery. The rule states that “[p]arties 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. P. 26(b)(1). Nevertheless, Rule 26(b)(2)(C) requires the Court to limit the frequency or extent of discovery if:

Fed. R. Civ. P. 26(b)(2)(C).

Additionally, a party may file a motion to compel discovery pursuant to Fed. R. Civ. P. 37(a). Rulings on motions to compel discovery under Rule 37(a) are committed to the sound discretion of the trial court. See NetJets Aviation, Inc. v. Peter Sleiman Dev. Grp., LLC, No. 3:10-cv-483-J-32MCR, 2011 WL 6780879, at *2 (M.D. Fla. Dec. 27, 2011) (citing Commercial Union Ins. Co. v. Westrope, 730 F.2d 729, 731 (11th Cir. 1984)). The proponent of a motion to compel discovery bears the initial burden of proving that the information sought is relevant. Bright v. Frix, No. 8:12-cv-1163-T-35MAP, 2016 WL 1011441, at *1 (M.D. Fla. Jan. 22, 2016). “Evidence is relevant if it has any tendency to make the existence of any fact or consequence more or less probable than it would be without the evidence.” Gonzalez v. ETourandTravel, Inc., No. 6:13-cv-827-Orl-36TBS, 2014 WL 1250034, at *2 (M.D. Fla. Mar. 26, 2014) (citing United States v. Capers, 708 F.3d 1286, 1308 (11th Cir. 2013)).

Plaintiff's Second Request for Production requests all emails sent from two email accounts controlled by Defendant, which Plaintiff used while she worked as a resident physician for Defendant. (See Doc. 44 at 3-4). Although the motion to compel states that Plaintiff seeks all emails “in” the specified accounts, apparently including emails sent to and from the accounts, (see id. at 7-8), the document requests at issue sought only the production of “[a]ll emails sent from” each account, (see id. at 3 (emphasis added)).

Following a conferral between the parties, Plaintiff agreed to limit the temporal scope of her requested production to emails sent from October 2015 through December 2017. (Id. at 4). While Plaintiff argues that Defendant should be required to produce all of the requested emails from the relevant timeframe, (see Doc. 44), Defendant disagrees and asserts that Plaintiff should be required to limit her request to specific search terms and “custodians” within the emails, (see Doc. 46).

*2 As a threshold matter, the Court finds Plaintiff's Request Numbers 4 and 5 from Plaintiff's Second Request for Production of Documents and Things, (see Doc. 46-1 at 5), only call for the production of emails sent from the two specified email accounts, (see Doc. 44 at 3). As such, Plaintiff's motion to compel must be denied to the extent she appears to seek to compel the production of emails sent to those email accounts. However, the Court will grant Plaintiff's motion to compel as to all the emails sent from the specified email accounts from October 2015 through December 2017, and require Defendant to produce all of those sent emails.

Given Plaintiff's various employment-related allegations (see id. at 3-4), the Court finds that the search terms Defendant applied to the emails were unreasonable and wholly inadequate to identify emails that are relevant to the claims and defenses in this action, (see Doc. 46 at 4). Notably, Defendant does not argue that it tested the search terms in any meaningful way to determine whether they were effective, including but not limited to reviewing a statistically significant sampling of the null set (i.e., the emails that did not contain search term hits) to assess how effective or ineffective the search terms may have been. Additionally, Defendant makes no effort to explain why the search terms it self-selected are appropriate.

Looking at the list of search terms used, many of them are formal legal terms one might expect to find in legal communications, but not in email communications generated in a workplace using less legalistic language. (See Doc. 44). For example, but without limitation, an email communication may contextually be or concern a grievance or complaint, but not contain the words “grievance” or “complaint.” By way of further example, an email communication may contextually evince or relate to Plaintiff's FMLA leave, schedule, or reasonable accommodation, but may not contain the words “FMLA,” “leave,” “schedule,” or “reasonable accommodation.” At base, Defendant has not demonstrated that the search term methodology it used was reasonable or appropriate in this case to identify potentially relevant emails sent by Plaintiff using the specified email accounts.

Moreover, the Court is not persuaded that a search term methodology was justified in the first instance given the relatively small set of sent emails at issue and the very high probability that any list of search terms would be materially under-inclusive. The Court finds that a linear review of at least the sent emails before production was likely warranted here given the manageable size of the document set and the danger of omitting contextually relevant emails that do not contain specific terms. Although Defendant is correct that perfection is not the goal of this type of electronic discovery process, the methodology Defendant chose to employ here is so fundamentally faulty and unreasonable that the Court cannot endorse it. To cure the issue and to keep this case moving towards summary judgment and trial, the Court will require Defendant to produce all emails sent from the specified email accounts during the stipulated timeframe.

Defendant advises that the total number of sent emails genuinely at issue is approximately 1,720. (See Doc. 46 at 7). The Court finds this amount to be reasonable and proportional to the needs of the case. It is by no means a shocking volume of emails to produce in litigation of this nature. The Court is not persuaded that the cost or burden associated with the production of 1,720 emails sent from two email accounts used by Plaintiff within a limited and relevant time period is onerous or unreasonable given the wide variety of technological tools available to Defendant to quickly and efficiently collect and produce those emails to Plaintiff in a forensically defensible manner consistent with the Federal Rules of Civil Procedure. Indeed, Defendant would have to have already collected all of the sent emails in order to have run Defendant's self-selected search terms against the entire document set. Thus, even under Defendant's preferred and more limited search methodology, collecting all of the sent emails was necessary and appears to have already been done. Requiring Defendant to now produce those emails should not entail significant additional or undue collection costs or burdens.

*3 Relatedly, the Court finds it improbable that Defendant would incur any additional burden or cost to review the sent emails for privilege or work product before their production because Plaintiff is the author and original custodian of the emails and, as such, has already seen their content.

Further, the Court agrees with Plaintiff that limiting the production to emails sent by Plaintiff to specified “custodians” or recipients makes little sense here given the nature of Plaintiff's claims and that Plaintiff was the original custodian of both of the specified email accounts.

Additionally, it is clear that the parties have negotiated a confidentiality agreement to govern the production and use of documents in discovery. That agreement appears to permit the production of documents under an attorney's-eyes-only designation. (See Doc. 44 at 5). The availability of that designation should be sufficient under the circumstances to allay Defendant's concerns about producing emails that contain confidential information, including patient information, without the need for extensive redaction prior to production. As such, the Court will permit Defendant to designate all emails produced to Plaintiff pursuant to this Order as “Confidential - Attorney's Eyes Only” as provided in the parties’ confidentiality agreement without redaction. Plaintiff's counsel may then challenge any such designation on a document-by-document basis before filing any document(s) with the Court or presenting them at trial. In connection with any such challenge, the parties must confer as provided in their confidentiality agreement, but also in full compliance with Local Rules 1.11(d) and 3.01(g), regarding the need to de-designate any document as confidential, to redact any document before filing, or to seek the Court's leave to file any document under seal.

Lastly, the Court denies Plaintiff's motion to the extent that Plaintiff seeks an award of attorney's fees. The Court finds aspects of Plaintiff's motion were overreaching, including Plaintiff's implied demand for all emails sent to her work email accounts during the relevant time period despite the fact that the document requests at issue only called for the production of emails sent from the specified accounts. Additionally, the Court finds that an award of fees would be unjust under the circumstances and that Plaintiff's attempts to confer before filing the motion to compel were inadequate.

Accordingly, the Court ORDERS that:

DONE and ORDERED in Fort Myers, Florida on September 30, 2021.