Cooley ex rel. N.O.C. v. Target Corp.
Cooley ex rel. N.O.C. v. Target Corp.
2021 WL 6882660 (D. Minn. 2021)
September 17, 2021
Schultz, David T., United States Magistrate Judge
Summary
The court granted in part and denied in part Plaintiff Kristen Cooley's Motion to Compel Production of Documents and Deposition Testimony. The court ordered Target to search for ESI using agreed search terms in sources beyond Target's Outlook email server, including Slack. The court denied Cooley's motion as to SharePoint, OneDrive, Yammer, and Skype, as Target lacked the capability to perform ESI searches on those platforms.
Additional Decisions
Kristen N. Cooley, guardian of the estate of N.O.C., a minor, Plaintiff,
v.
Target Corporation, Target Enterprise, Inc., and John Does 1-10, Defendants
v.
Target Corporation, Target Enterprise, Inc., and John Does 1-10, Defendants
Case No. 20-cv-2152 (DWF/DTS)
United States District Court, D. Minnesota
Filed September 17, 2021
Counsel
Bradley E. Beckworth, Pro Hac Vice, Christopher P. Renz, Minneapolis, MN, Cody L. Hill, Howard N. Wisnia, Wisnia PC, San Diego, CA, Jeffrey John Angelovich, Karl L. Cambronne, Minneapolis, MN, Lisa P. Baldwin, Ross Leonoudakis, Austin, TX, Susan Whatley, Nix Patterson, LLP, Linden, TX, for Plaintiff.Faris Rashid, Jeya Paul, Sybil L. Dunlop, Greene Espel PLLP, Donna Reuter, James Michael Keyes, Seattle, WA, Shannon L. Bjorklund, Tiana Towns, Dorsey & Whitney LLP, Minneapolis, MN, for Defendant.
Schultz, David T., United States Magistrate Judge
ORDER
*1 This is a copyright infringement lawsuit relating to a crayon-style polka-dot design used in the Cat & Jack line of children's clothing and accessories sold by Target in 2018. Plaintiff Kristen Cooley contends her son created the artwork used by Target. Target asserts that the design was created by one of its in-house designers, Rebecca Davis.
Cooley moves to compel (1) the personnel file of Rebecca Davis; (2) licensing agreements between Target and artists or designers whose work it used in clothing; (3) a Rule 30(b)(6) deposition of a fully prepared Target witness to testify about Topics 1, 3, and 6-9 in Cooley's Amended Rule 30(b)(6) Notice; and (4) a search for ESI, using the agreed search terms, in sources beyond Target's Outlook email server. Motion to Compel, Dkt. No. 135. As discussed below, the Court grants Cooley's motion in part and denies it in part.
I. Personnel File of Rebecca Davis
Rule 26 provides that, unless otherwise limited by court order, 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, considering 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. Fed. R. Civ. P. 26(b)(1).
Rebecca Davis is an in-house designer at Target. Davis Decl. ¶ 1, Dkt. No. 149. Target has identified her as the person who created the polka-dot design at issue in this lawsuit. Id. ¶ 2. Cooley has not yet taken Davis's deposition. Def. Br. 2 n.1, Dkt. No. 144. Cooley requested production of Davis's complete personnel file (RFP No. 24) on the ground that her “elevated status” as a key witness puts her “credibility directly at issue,” and thus her personnel file is relevant information for a jury to assess her credibility. Pl. Br. 35-36, Dkt. No. 137. Cooley asserts Davis's personnel file is particularly relevant because (1) Davis's emails during the relevant 2017-18 time period were deleted pursuant to Target's record retention policies, depriving Cooley of contemporaneous written records to test Davis's credibility, and (2) Target's Rule 30(b)(6) witness testified that Davis had a hard time remembering the 2017 time period. Id. Target objects that Davis's personnel file is not relevant to any issue in the case and Cooley offers nothing more than speculation that the file may contain some piece of information that bears on Davis's credibility with respect to the copyright infringement claim. Def. Br. 28-30, Dkt. No. 144.
A party seeking discovery of personnel documents must make a threshold showing that the information sought is relevant to the subject matter of the pending lawsuit. Onwuka v. Federal Express Corp., 178 F.R.D. 508, 515 (D. Minn. 1997). The proper balance between the privacy interests of the affected employees and the discovery interests of the litigant is to assure that only those portions of pertinent personnel files that are clearly relevant to the party's claims are open to disclosure, subject to a protective order. Id. at 517. Cooley has made no showing of relevance here.
*2 Cooley cites no authority to support her argument that production of Davis's personnel file is warranted simply because she is a critical witness or because her emails are not available. Cooley has not tied her alleged need for Davis's personnel file to her copyright infringement claim, and her credibility arguments would apply to any witness in any case. She has not demonstrated that Davis's personnel file is relevant to any issue in this lawsuit. See Fed. R. Civ. P. 26(b)(1); Shukh v. Seagate Technology, LLC, 295 F.R.D. 228, 238 (D. Minn. 2018) (upholding refusal to compel expert witness's personnel file and information about previous lawsuits: “[Plaintiff's] interpretation of relevance is far too broad, and would allow unbounded discovery into any and all aspects of [the witness's] life that could possibly bear on his truthfulness. [Plaintiff] has demonstrated no connection between [the witness's] personnel file ... that bears directly upon the issues presented in this case.”).
Moreover, the cases cited by Cooley are inapposite. Khoday v. Symantec Corp., No. 11-cv-180, 2013 WL 12140487 (D. Minn. Oct. 8, 2013), is a consumer fraud case that did not involve a personnel file but rather a severance agreement between the defendant company and a former high-ranking employee who was deposed. The Court ordered it produced because the structure of the severance agreement was relevant to show potential bias of the witness. Id., 2013 WL 12140487, at *2 The other cases she relies on are employment discrimination lawsuits in which either the parties agreed the personnel records were discoverable, or the plaintiffs demonstrated a connection between the information sought and their discrimination claims. For example, Nyrop v. Independent School Dist. No. 11, No. 07-cv-4663, 2008 WL 11347410, at *2 (D. Minn. Aug. 21, 2008), is a disability discrimination case in which the parties agreed on the scope of the personnel materials to be produced, but the defendant asked the Court to enter an order so that it could produce the non-public personnel data pursuant to the Minnesota Government Data Practices Act. Miles v. Boeing, 154 F.R.D. 112 (E.D. Pa. 1994), is a race discrimination case in which the parties agreed the personnel file of the employee who replaced the plaintiff was relevant to the issue of pretext and thus discoverable, but the plaintiff opposed a protective order for the file. Id. at 115.
In Cardenas v. Prudential Ins. Co. of America, Nos. 99-cv-1421, -1422, -1736, 2003 WL 244640 (D. Minn. Jan. 29, 2003), the Court ordered production of personnel files after the plaintiffs “provided affidavits explaining their need for this information, and tying it to their discrimination claims.” The Court noted the plaintiffs’ burden to demonstrate pretext to prevail on their Title VII claims and that they had also alleged pattern-and-practice claims. Id., 2003 WL 244640, at *2. In Lyoch v. Anheuser-Busch Cos., Inc., 164 F.R.D. 62, 68-69 (E.D. Mo. 1995), a sex and age discrimination case, the Court found the personnel file of the plaintiff's supervisor was relevant because it may include evidence of how the supervisor treated other employees, complaints about his conduct, and actions taken by the defendant company in response to such complaints. In Odeh v. City of Baton Rouge, No. 14-cv-793, 2016 U.S. Dist. LEXIS 41079 (M.D. La. Mar. 29, 2016), the plaintiff alleged discrimination based on national origin. The Court ordered production of information about disciplinary actions involving conduct that concerned persons of Middle Eastern descent, including portions of an employee's personnel file that the Court had reviewed in camera and found to be discoverable. Id., 2016 U.S. Dist. LEXIS 41079, at *12, 16-17. None of these cases supports Cooley's argument that Davis's personnel file is relevant to her credibility regarding the alleged copyright infringement here.
*3 Because Cooley has failed to make a threshold showing of relevance, the Court denies her motion to compel production of Davis's personnel file.
II. Licensing Agreements
Cooley moves to compel Target to produce licensing agreements with artists or designers whose work Target used in clothing during the past 10 years (Amended RFP No. 19). She asserts the agreements are relevant as a measure of damages for copyright infringement, i.e., the fair market value of the copyrighted work. Pl. Br. 39-40, Dkt. No. 137. Target objects that Cooley's request is overly broad and unduly burdensome. It asserts the request should be limited to the Cat & Jack product line, which is an in-house brand that is owned and developed by Target. Def. Br. 31-33, Dkt. No. 144. Target also argues Cooley's motion is premature because since July 28, 2021 Target has been and will continue to produce relevant “artwork agreements” related to the Cat & Jack product line, and it contends it “has not entered into any licensing agreements of the sort Plaintiff envisions (e.g. with running royalties) with artists for designs used in the Cat & Jack line.” Id. at 32-33.
Cooley's request and Target's responses are as follows:
Plaintiff's Amended RFP No. 19: A full and complete, executed copy of each licensing agreement you have entered into with any artist or designer whose work you licensed for use in relation to Target clothing from January 1, 2011 to present.
Target's Response to Amended RFP No. 19: Target incorporates by reference the General Objections. Target objects to this Request as overly broad, unduly burdensome, and not proportional to the needs of this case to the extent it seeks documents related to items other than the Accused Products - including merchandise outside the Cat & Jack line - which are unrelated to the claims or defenses in this case. Target objects to this Request to the extent it seeks information protected from disclosure by any protective order, non-disclosure agreement, confidentiality agreement, or law that is binding on Target. Target restricts this Request to seeking licenses for design work for the Cat & Jack line (excluding licenses for use of characters, superheroes, etc.), and after a reasonable search, has determined that there are none.
Target's Supplemental Response to Amended RFP No. 19: Target reasserts its previously lodged objections to this Request Subject to and without waiving the foregoing objections, Target restricts this Request to seeking licenses for design work for its children's clothing lines. After a reasonable search, Target has determined that there are none. Target has not entered licenses with artists or brand owners for its Cat & Jack product line since at least January 1, 2017. There are no licensees currently associated with the Cat & Jack line. Beyond the Cat & Jack line, Target may engage vendors who have relationships with studios and/or licensors. Target's contracts with these vendors can be viewed at:
https://www.partnersonline.com/page/public/legal/Conditions-of-Contract;
and
https://www.partnersonline.com/page/public/legal/Rules-of-Use
(TARGET_002658-2678).
Hill Decl. Ex. 1, Dkt. No. 139-1 at 6-7.
*4 The Court finds that Cooley's Amended RFP No. 19 for licensing agreements with artists and designers whose work was used in any “clothing” is overly broad and that the relevant category for discovery purposes is children's clothing, including but not limited to the Cat & Jack line. Although Target now argues that agreements relating to the Cat & Jack line are the only relevant comparators, in its supplemental response quoted above it asserted the relevant limitation as its “children's clothing lines,” plural. It may well be that payments related to the Cat & Jack line differ from payments related to other children's clothing, but at the discovery stage the Court finds that any agreements for children's clothing lines beyond Cat & Jack are relevant. However, agreements to license established commercial characters (such as a Disney or Marvel character) fall outside the relevant category here and need not be produced.[1]
Accordingly, the Court orders that, to the extent Target has not already done so, Target shall produce licensing agreements with any artist or designer whose work it used in its children's clothing lines from January 1, 2011 to the present. This includes clothing outside the Cat & Jack line but does not include licenses for the use of established commercial characters.
III. Amended Notice of Rule 30(b)(6) Deposition on Topics 1, 3, and 6-9
Rule 30(b)(6) states:
In its notice or subpoena, a party may name as the deponent a public or private corporation ... and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.... The persons designated must testify about information known or reasonably available to the organization.
Rule 37 provides that a court may, on motion, order sanctions if a person designated under Rule 30(b)(6) fails to appear for the deposition. Fed. R. Civ. P. 37(d)(1)(A)(i). “Failure to appear” includes not only a complete failure to show up but also the failure to produce a witness who is adequately prepared for one or more topics in the Rule 30(b)(6) notice. See Stan Koch & Sons Trucking, Inc. v. American Interstate Ins. Co., No. 18-cv-2945, 2020 WL 2111349, at *13 (D. Minn. May 4, 2020). Moreover, the failure to produce a prepared witness “is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2).
Once a deposition is underway Rule 37 provides that, when a deponent fails to answer a question asked under Rule 30 or 31, a party may bring a motion to compel an answer. Fed. R. Civ. P. 37(a)(3)(B)(i). The party taking the deposition has the option of completing or adjourning it before moving for an order to compel an answer. Id. 37(a)(3)(C).
On May 5, 2021 Cooley served a Rule 30(b)(6) deposition notice. Hill Decl. Ex. 20, Dkt. No. 139-3 at 41-56. The parties conferred, with Target raising objections and offering an affidavit from Matt Erickson, its designated Rule 30(b)(6) witness. Rashid Decl. Ex. F (May 18, 2021 Target objections), Dkt. No. 147-1 at 55-71; Hill Decl. Ex. 24 (May 27, 2021 Erickson Aff.), Dkt. No. 140-4. Cooley served an amended Rule 30(b)(6) deposition notice on June 18, 2021 to which Target again served objections and responses. See Hill Decl. Ex. 25 (amended notice) and Ex. 27 (June 25, 2021Target objections), Dkt. No. 139-4 at 1-20 and 28-48. Target did not move for a protective order with respect to any of the identified topics, and Erickson was deposed on July 14, 2021. Hill Decl. Ex. 6 (transcript), Dkt. No. 40.
*5 Topics 1, 3, and 6-9 relate to Target's document and ESI storage systems and retention and deletion policies; the circumstances relating to any deletion of Rebecca Davis's files; Target's procedures to preserve and produce evidence in this lawsuit; and its searches, electronic and otherwise, for relevant documents. Target asserted generic objections of relevance, proportionality, attorney-client privilege, work product doctrine, and exceeding the scope of the civil procedure rules. See Hill Decl. Ex. 27, Dkt. No. 139-4 at 33, 35, 37-39. It also objected to Topics 6-9 as duplicative of other topics. Id. at 37-39. Target then responded as follows:
Response to Topic No. 1: Notwithstanding any objections, but without in any manner waiving the objections, Target responds to Topic No 1 by stating that it will designate a witness who can attest, generally, as to Target's storage of documents and communications in Microsoft Office 365 (including OneDrive and SharePoint Online), employee laptops, Yammer, Skype, Slack, shared network drives, GroveSite, and FlexPLM, insofar as they relate to documents responsive to Plaintiff's Requests for Production in the matter of Kristen N. Cooley, guardian of the estate of N.O.C., a minor v. Target Corporation, Target Enterprise, Inc., and John Does 1-10, currently pending as Civil File No. 20-cv-02152-DWF-DTS (“the Action”), including the manner in which Target used, maintained and/or stored documents and ESI on or in any such systems or sources.
Response to Topic No. 3: Notwithstanding any objections, but without in any manner waiving the objections, Target responds to Topic No 3 by stating that it will designate a witness who can attest, generally, as to document and ESI retention, storage, preservation, maintenance, archiving, deletion and/or destruction policies during the Relevant Period and insofar as they relate to documents responsive to Plaintiff's Requests for Production in the Action.
Response to Topic No. 6: Notwithstanding any objections, but without in any manner waiving the objections, Target responds that it will designate a witness who can attest, generally, as to the subjects that Target identified in response to Topic Nos. 1-3.
Response to Topic No. 7: Notwithstanding any objections, but without in any manner waiving the objections, Target responds that it will designate a witness who can attest, generally, as to the subjects that Target identified in response to Topic Nos. 1-3.
Response to Topic No. 8: Notwithstanding any objections, but without in any manner waiving the objections, Target responds that it will designate a witness who can attest, generally, as to the subjects that Target identified in response to Topic Nos. 1-4.
Response to Topic No. 9: Notwithstanding any objections, but without in any manner waiving the objections, Target responds that it will designate a witness who can attest, generally, as to the subjects that Target identified in response to Topic Nos. 1-4.
Dkt. No. 139-4 at 33-35, 37-39.
Cooley moves to compel Target to produce a fully prepared witness on Topics 1, 3, and 6-9 of the amended notice. Pl. Br. 18-32, Dkt. No. 137.
In its opposition, Target does not argue the merits of any particular objection it raised to Topics 1, 3, or 6-9 in the deposition notice, or any particular objection it made to a question asked at Erickson's deposition. It does not dispute that its corporate designee was not fully prepared to testify on Topics 1, 3, and 6-9. Rather, Target asserts it was not required to produce a fully prepared witness. It argues that Cooley's motion should be denied because she was obligated to seek relief from the Court before the deposition if she did not want to accede to Target's objections and desired limitations to the scope of the 30(b)(6) deposition. See Def. Br. 10-16 (“Target took reasonable positions that went uncontested until after the deposition. The Court should deny Plaintiff's request on this basis alone.”), Dkt. No. 144. It also contends that its failure to produce a fully prepared witness is not actually a failure to produce a witness for purposes of Rule 30(b)(6) because it was “transparent with Plaintiff” about its “reasonable positions.” Def. Br. 15, Dkt. No. 144. Target is wrong on both points.
*6 First, while it is true as a practical matter that a disputed discovery issue may come to the Court in a variety of ways and may be initiated by either party, the plain language of Rule 37 makes it clear that a party's failure to produce a prepared 30(b)(6) witness “is not excused on the ground that the discovery sought was objectionable, unless [it] has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2). The fact that Cooley is not seeking sanctions in the present motion does not change the plain language of the rule. Second, it is sophistry for Target to assert that its failure to produce a prepared witness is not really a failure to produce a witness because, in its view, its objections were both “reasonable” and “transparent.” There is no authority to support this argument.
The cases Target cites do not rely on the reasoning it asserts here. For example, in Elsherif v. Mayo Clinic the motion to compel a third Rule 30(b)(6) deposition was not denied on the basis that five topics “were still in dispute,” nor did the Court hold or suggest that the party objecting to Rule 30(b)(6) topics had veto power over the scope of the deposition unless the noticing party brought a pre-deposition motion to compel. Rather, the Elsherif opinion simply notes that the parties had taken two Rule 30(b)(6) depositions on topics stipulated to by the parties, but five other topics — the subject of the motion to compel a third deposition — were “still in dispute.” Elsherif, No. 18-cv-2998, 2020 WL 5015825, at *1 (D. Minn. Aug. 25, 2020). The Court denied the motion on the merits because (1) one topic sought testimony from the Mayo Clinic corporate designee regarding the plaintiff's medical records, but Mayo Clinic was sued in its capacity as the plaintiff's employer, not as his medical provider; thus the Rule 30(b)(6) witness did not (and could not) have access to the medical information, id. at *3; and (2) four other topics were overbroad and burdensome, as each single-sentence topic asked for testimony on the entire “factual and legal bases” for Mayo Clinic's affirmative defenses and positions, with the Court noting Rule 30(b)(6)’s obligation to “describe with reasonable particularity” the topics for examination,” id. at *2 (“it is widely accepted that 30(b)(6) topics which seek to depose on all of the bases for the claims in a case and the contentions made in support of those claims are overly broad”) (internal citation and quotation marks omitted). Nothing in Elsherif is instructive for this case.
The Northwest Airlines, Inc. case is also inapposite. In that case, Northwest Airlines (NWA) designated its attorney of record in the lawsuit as its Rule 30(b)(6) representative and also objected to nine of the eleven topics. Northwest Airlines, Inc. v. Professional Aircraft Line Svc., No. 11-cv-368, 2012 WL 13027963, at *1 (D. Minn. June 1, 2012). The party that noticed the deposition brought a motion to require NWA to designate a different 30(b)(6) witness and to rule against NWA's objections to the topics. Id. It is basic logic that a noticing party that opposes an organization's choice of Rule 30(b)(6) witness should bring a motion for a different witness before everyone shows up at the deposition. Nothing in Northwest Airlines supports Target's premise that a noticing party must accede to an organization's objections and unilateral limitations on Rule 30(b)(6) topics if the party does not bring a pre-deposition motion.
Similarly, the Higgins case does not support Target's argument that Cooley was required to bring the matter to the Court pre-deposition so the Court “could have ruled on the topics or ordered the parties to meet and confer.” Def. Br. 15, Dkt. No. 144. In Higgins the parties jointly brought to the Court their dispute over 30(b)(6) topics using a process imposed by the Court due to their total inability to engage in productive discovery without active and ongoing Court oversight. See United States ex. rel. Higgins v. Boston Sci. Corp., No. 11-cv-2453, 2020 WL 968218, at *6 (D. Minn. Feb. 28, 2020) (“the parties raised a dispute regarding Rule 30(b)(6) deposition topics”). The process included monthly telephone status conferences with the Court, to be preceded by monthly meetings between the parties and monthly joint status reports, so the parties could work through their outstanding discovery issues. Id. at *3. A breakdown in the discovery process occurred nonetheless, id. at *4, but the monthly meetings, status reports, and status conferences with the Court continued (along with motions, orders, and appeals). Among the flood of disputes raised to the Court was the parties’ dispute over Rule 30(b)(6) topics. Id. at *6. The Court directed them to meet and confer and submit a joint letter stating each party's position on each topic; the Court and the parties went through each disputed topic during their telephone conference; the parties resolved some topics; and the Court ruled on the remaining topics in dispute. Id. Higgins illustrates (among other things) the variety of ways a discovery dispute can end up in front of the Court. It does not, however, support Target's premise that it was excused from producing a fully prepared 30(b)(6) witness because Cooley did not seek pre-deposition relief from the Court regarding Target's objections and limitations.
*7 Accordingly, the Court grants Cooley's motion and orders Target to produce a fully prepared witness(es) to address Topics 1, 3, and 6-9 of the amended Rule 30(b)(6) notice. The topics appear relevant and appropriate and, as noted above, Target based its opposition on an incorrect premise (that it was not required to fully prepare its witness for the topics) and thus its brief did not present the Court with arguments that particular questions regarding Topics 1, 3, and 6-9 at Erickson's deposition were objectionable (or, if so, why). If during the second deposition Target objects to a question on the basis of privilege, Cooley may move to compel an answer. The Court at that time will evaluate the specific question that was asked and the specific basis for Target's assertion of privilege.
IV. Search for ESI Beyond Outlook Email
Cooley moves to compel Target to search for ESI, using the agreed search terms, in sources beyond Target's Outlook email server, and to produce the responsive results of such searches. Pl. Br. 3, 14, 17, 32-35, Dkt. No. 137. It relies on the testimony of 30(b)(6) witness Erickson that Target is capable of performing searches on platforms such as SharePoint, OneDrive, Yammer, and Slack. Id. at 3, 24-25, 33-34.
Target states that Erickson's testimony was wrong and resulted from the fact that Target did not prepare him to testify on that topic. It asserts it does not have the capability to run keyword data searches in non-email Office365 platforms such as SharePoint, OneDrive, and Yammer. Def. Br. 2, 24-25, Dkt. No. 144. Target provided the declaration of Stephen Wortman, a Lead Operations Analyst at Target and the Security Ninja for the Enterprise Collaboration team. He confirmed that Target “does not have the necessary processes in place to allow it to run specific word searching” in SharePoint, OneDrive, or Yammer and that Microsoft, the service provider, has not supported those platforms in a way that allows searches. Wortman Decl. (Aug. 9, 2021) ¶ 3, Dkt. No. 148.
In addition, Target states that no searches can be performed of Skype messages because, pursuant to its retention schedule, such chat messages are automatically and immediately deleted. Def. Br. 25, Dkt. No. 144; Hill Decl. Ex. 16 (Target Collaborative Tools Sweep Schedule), Dkt. No. 140-2. Thus, there is nothing to search.
As for Slack, Erickson testified that Target has the ability to search Slack, and the Wortman Declaration does not address Slack's searchability. See Erickson Dep. Tr. 147, Dkt. No. 140; Wortman Decl., Dkt. No. 148. Target's brief specifically mentions Slack only in a footnote in which Target does not argue that it has no capability to search Slack but rather that any search would be futile at this point. It states:
Slack was not available to Ms. Davis until this year, meaning there is no possibility that relevant chat messages about the design at issue are maintained in Slack. See Davis Decl. ¶ 5. Even if that had been the case, Target's retention policy automatically deletes Slack messages after 13 months, meaning any messages from 2017 or 2018 — from Ms. Davis or anyone else — were deleted. See ECF No. 140-2.
Def. Br. 25 n.12, Dkt. No. 144. As Target has not demonstrated that it lacks the capability to perform ESI searches of Slack, the Court will order it to do so.
Target further states that its employees manually located relevant documents from non-email data sources, all of which it has identified in detail, and that it has produced those documents. Def. Br. 2, Dkt. No. 144. Target represents that it ran another broad search of its email data using the agreed search terms. Id.
The record before the Court indicates that Target lacks the capability to perform ESI searches of SharePoint, OneDrive, Yammer, and Skype, and Cooley's motion is denied as to those platforms. The motion is granted with respect to Slack, and the Court orders Target to perform such a search for responsive documents.
ORDER
*8 The Court, being duly advised in the premises, upon all the files, records and proceedings herein, now makes and enters the following Order.
IT IS HEREBY ORDERED that Plaintiff Kristen Cooley's Motion to Compel Production of Documents and Deposition Testimony [Dkt. No. 135] is GRANTED IN PART AND DENIED IN PART:
1. The motion is denied with respect to the personnel file of Rebecca Davis.
2. The motion is granted in part with respect to licensing agreements: Target shall produce licensing agreements with any artist or designer whose work it used in its children's clothing lines from January 1, 2011 to the present; however, any agreements to license commercial characters (such as a Disney or Marvel character) need not be produced.
3. The motion is granted with respect to Topics 1, 3, and 6-9 in the amended Rule 30(b)(6) deposition notice, and Target shall produce a fully prepared witness(es) to address those topics.
4. The motion is granted in part with respect to searches for ESI: Target shall search Slack for responsive documents.
Footnotes
Target's response and supplemental response are also unclear as to whether “licenses for design work” is the same as, overlaps with, or is different than “licenses with artists or brand owners.” Thus, when Target responded that it searched for licenses and found “none,” it is not clear which types or categories of licenses it looked for.