NRT Tex. LLC v. Wilbur
NRT Tex. LLC v. Wilbur
2022 WL 19039614 (S.D. Tex. 2022)
November 1, 2022
Ho, Yvonne Y., United States Magistrate Judge
Summary
The court granted Coldwell Banker's motion to compel in part, ordering Defendants Linda Sheinall, Catherine Johnson, and Premier to produce certain ESI within 10 days. This included full Cellebrite files, emails, social media posts, and other documents from March 1, 2022 to the present. The court denied the motion in part, including with respect to documents reflecting restrictive covenants between the individual defendants and Premier.
Additional Decisions
NRT Texas LLC d/b/a Coldwell Banker Realty and Coldwell Banker, Realtors, Plaintiff,
v.
Jennifer Wilbur, et al., Defendants
v.
Jennifer Wilbur, et al., Defendants
Case No. 4:22-cv-02847
United States District Court, S.D. Texas, Houston Division
Signed November 01, 2022
Counsel
Nicholas Alex Sarokhanian, Holland & Knight LLP, Dallas, TX, for Plaintiff.Steve Martin Williard, The Williard Law Firm, L.P., Houston, TX, for Defendants, Jennifer Wilbur, Linda Sheinall, Stacy Incorporated.
Pete Thomas Patterson, Patterson PC, Houston, TX, Steve Martin Williard, The Williard Law Firm, L.P., Houston, TX, for Defendants, Taffie Dolson, Catherine Johnson.
Ho, Yvonne Y., United States Magistrate Judge
ORDER ON MOTION TO COMPEL AND SUPPLEMENT
*1 The Court held a discovery hearing on October 14, 2022 regarding Plaintiff NRT Texas LLC d/b/a Coldwell Banker Realty and Coldwell Banker, Realtors' (“Coldwell Banker”) Motion to Compel (Dkt. 38) and Supplement thereto (Dkt. 40). Twelve days later, Coldwell Banker filed a proposed order (Dkt. 51), to which Defendants filed objections (Dkt. 52).
After carefully considering the Motion, Supplement, response (Dkt. 50), proposed order and objections (Dkt. 51, 52), and the arguments of counsel, it is ORDERED that Coldwell Banker's motion is GRANTED IN PART and DENIED IN PART, as follows.
General Issues: All Defendants
As noted at the hearing, Coldwell Banker's non-compliance with the pre-motion discovery process provides grounds for striking its motion altogether. But ultimately, the Court declines to take that course of action because it would only delay resolution of discovery issues that are pertinent to the impending preliminary injunction hearing. Future violations of any court procedures will, however, result in rejection of filings.
Moreover, the Court finds that Defendants' counsel has been less than diligent and cooperative through this process, as evidenced most recently by his failure to promptly respond to Coldwell Banker's proposed order memorializing the Court's oral rulings at the October 14 hearing. Counsel is warned that further delays will not be tolerated.
In addition, all counsel must refrain from sending the Court's case manager emails that argue the substance of their disputes. Such conduct is plainly inappropriate.
Format of Production and Metadata. Defendants objected to Coldwell Banker's ESI protocol, which requested production in TIFF format with fielded metadata. See Dkt. 38-1 at 14 of pdf (Ex. C). The record raises serious concerns that Defendants' production is incomplete, and that responsive documents may have been deleted. In addition, production in pdf format has left some embedded screenshots in text messages virtually illegible.
Defendants' objections to Coldwell Banker's ESI protocol are overruled, as the requested format of production is both relevant and proportional to the needs of this case. Although Defendants have indicated that they are “unable to provide metadata for social media posts,” Dkt. 52 ¶ 4, they offer no explanation or evidence substantiating that assertion.[1] Defendants must comply with the protocol detailed in Coldwell Banker's requests for production. If any such metadata is wholly unavailable, Defendants must explain the steps undertaken to retrieve it. See infra, discussing Defendants' Explanation of Discovery Efforts.
Cellebrite Reports. Given the deficiencies in production, the following Defendants must produce full Cellebrite information for all the specified devices, as detailed below: Jennifer Wilbur, Taffie Dolson, and Linda Sheinall. Coldwell Banker has sufficiently demonstrated the relevance of this information, and that the request for those reports is proportional to the needs of this case. For those defendants, the Cellebrite reports may be produced under the designation “Attorneys' Eyes Only,” and without waiving any potential privilege. Those defendants must bear the associated cost of preparing and producing the reports.
*2 In contrast, Coldwell Banker has not adequately shown that Cellebrite Reports are warranted for Catherine Johnson's and Stacy Mathews's devices. With respect to those defendants, Coldwell Banker's request is denied without prejudice to re-urging if it is subsequently demonstrated that their productions remain incomplete even after the time has elapsed for producing additional documents pursuant to this order.
Deadline for Production. Defendants object to producing additional documents within five days from this date of the Order, as Coldwell Banker has proposed. Defendants' contrary proposal, however, places no limit on the amount of time taken by the IT vendor to gather, search, and compile responsive documents. That is untenable. The discovery requests were propounded many weeks ago. Even since the October 14, 2022 discovery hearing—where the Court pronounced its rulings—Defendants have had ample time to gather and produce the responsive documents. An intervening vacation by Defendants' counsel should not have impaired that process, particularly when all parties were well aware of the impending preliminary injunction hearing—which has already been continued once, see Dkt. 42. With a few exceptions described below, Defendants therefore must produce the outstanding Cellebrite reports and documents addressed above and below, within ten days of this Order.
Individual Defendants Jennifer Wilbur, Taffie Dolson, Catherine Johnson, and Linda Sheinall
RFP No. 1. The Court sustains Individual Defendants' objection to this request, as overbroad, to the extent it seeks “all Communications” regarding their “employment with Premier.” By its terms, this request would sweep in virtually all of Individual Defendants' communications with others while working for Premier. Coldwell Banker may narrow and resubmit this request for production on an expedited basis. Upon receiving a modified request, Individual Defendants will have three days to lodge any objections and seven days from the date that the request is received (not the date of any objections) to produce responsive documents.
RFP No. 2. Individual Defendants did not object to producing Communications responsive to this request, which encompasses the period from March 1, 2022 through trial.[2] See, e.g., Dkt. 38-1 at 23 ¶ 17 of pdf (Ex. D, general instructions). Coldwell Banker maintains that there may be additional documents that have yet to be produced. To the extent those exist, Individual Defendants must produce them regardless of whether they are text messages, social media messages, emails, or some other form.
RFP No. 3. The record in this case reflects that Individual Defendants' production of Communications responsive to this request is incomplete. For example, this request encompasses social media posts, whether posted by Individual Defendants themselves or those posted by others (including Premier) that reference any Individual Defendant by name, if those postings urge, entice, or encourage other real estate agents—including those individuals included in the definition of “Former Coldwell Banker Agents”—to join Premier. Individual Defendants cannot rely on their subjective interpretation of direct or indirect “solicitation” to exclude production of documents that otherwise would be responsive. In fact, they did not object on this basis, which doubly forecloses their refusal to produce the documents. Individual Defendants must produce all the responsive documents from March 1, 2022 to the present.
*3 RFP No. 4. Communications sought regarding Individual Defendants' becoming employed by or associated with Premier, including for example offers that were extended, terms of their proposed employment, other financial incentives extended, and job descriptions, are plainly relevant and material to this case. Individual Defendants must produce those Communications from March 1, 2022 to the present. Moreover, requested documents reflecting any obligations that Individual Defendants have to “cooperate with Premier in connection with litigation, demands, and discovery requests,” and documents reflecting “retention of counsel for [Individual Defendants] and/or the payment of counsel for [Individual Defendants]” could bear on Individual Defendants' credibility, are therefore relevant, and also must be produced from March 1, 2022 onward.
On the other hand, Coldwell Banker has not demonstrated that its request for documents showing whether Individual Defendants have restrictive covenants with Premier is relevant to the issues at the preliminary injunction hearing. Coldwell Banker is free to seek that information later, during full discovery.
Production by Defendant Premier
RFP No. 1. As of the October 14 discovery hearing, Defendant Premier's production of employment documents for all Individual Defendants remained incomplete. This information is plainly relevant and potentially material to Coldwell Banker's claims. For the reasons detailed above (regarding RFP No. 4 to the Individual Defendants), Premier must produce all documents related to the recruitment and hiring of the Individual Defendants, as well as the terms and conditions of their employment, their job descriptions, their obligations to cooperate with Premier in connection with litigation, and any retention and payment of counsel for Individual Defendants—dating back to March 1, 2022. Premier's objections on relevance grounds are overruled, except to the extent that this request seeks copies of Individual Defendants' restrictive covenants, if any, with Premier. Coldwell Banker can seek the latter information during full discovery.
RFP Nos. 2 & 4. Premier did not object to these requests, which encompass the period from March 1, 2022 through trial. See Dkt. 38-1 at 11 ¶ 17 of pdf (Ex. C, general instructions). Premier must provide any additional responsive documents, to the extent they exist.
RFP No. 3. This request for “all Communications ... reflecting the Premier office(s) for which Wilbur, Dolson, Johnson, and/or Sheinall had, have, or will in the future have any responsibilities, duties, or assignment” is overbroad. As written, this request would encompass every communication between these individuals and others, so long as it was sent within the scope of their employment with Premier. Premier's objection is therefore sustained. Coldwell Banker is granted leave to submit a modified version of this request. Premier will then have three days to lodge any objections and seven days from the date that the request is received (not the date of any objections) to produce responsive documents.
RFP No. 5. This request seeks all Communications and Documents between Premier and any of the “Former Coldwell Banker Agents,” as the term is defined in the request, that “show the economic terms of their association with Premier.” Because Premier's conduct is not at issue at this preliminary stage, the Court declines to compel further production responsive to this request, at this time, but without prejudice to a subsequent request for these documents during full discovery.
Defendants' Explanation of Discovery Efforts
The Court is highly skeptical of Defendants' discovery efforts. For certain requests, Defendants maintain that no responsive documents exist, even in instances where the record reflects that those documents existed (at least at some point) or logic and business practice indicate that those documents should exist.
*4 Each Defendant therefore must file with the Court—and within five days—a sworn affidavit or declaration detailing the steps they took to comply with the RFPs for which further production is owed. The explanation must explain the steps taken to locate or search for responsive documents.
For all Defendants, that explanation must include what locations, devices, email accounts, and other repositories were searched, as well as what custodians and search terms that were used. For Wilbur, her affidavit or declaration must further include an explanation regarding the contents of her @me.com email address, as specified in the conclusion below.
Each sworn declaration or affidavit must also explain the basis for claiming that any particular Defendant has no documents responsive to a given RFP or that the Defendant lacks custody or control of particular responsive documents.
Given the loss of Wilbur's emails from her @me.com account—which she now asserts may have been wiped by Coldwell Banker—the Court further orders Coldwell Banker—within five days of this order—to provide a sworn affidavit or declarations detailing whether any such directive was issued for Wilbur's iPhone, the procedures that would generally apply, and whether those procedures were utilized with respect to Wilbur's iPhone.
As a final note, the Court declines to specify search terms or custodians at this time. Counsel is warned that the Court expects parties to reach immediate agreement on these issues. Further delay or quibbling over those issues will have adverse consequences.
Conclusion
For the foregoing reasons, Coldwell Banker's Motion to Compel (Dkt. 38) and Supplement (Dkt. 40) are GRANTED IN PART and DENIED IN PART. It is ORDERED that:
All Defendants must, within 5 days, file with the Court a sworn affidavit or declaration that includes detailed explanation of the efforts used to locate or search for responsive documents, including ESI, that
1. for each of Individual Defendants, explains all accounts and devices that were searched, as well as all search terms used to identify responsive documents;
2. for Jennifer Wilbur, further explains the oldest email still in her @me.com email account, the number of emails predating June 24, 2022 that are still in that account, the total number of emails currently in that account, and all steps Wilbur took to ascertain the foregoing information, including which devices Wilbur examined for emails in that account, whether Wilbur looked for those emails on the iCloud website, and whether any vendor assisted in confirming those facts (and if so, the name of the vendor);
3. for Premier, explains the specific custodians, devices, and repositories that were searched, and the search terms that were used to identify responsive documents; and
4. for each of Defendants, illuminates the basis or reason for claiming that any Defendant has no documents responsive to a given request, that any Defendant is unable to retrieve particular information, that the Defendant lacks custody or control of particular responsive documents, or any combination of the foregoing.
Coldwell Banker must, within 5 days,
1. produce a sworn affidavit or declaration from its representative that explains whether Coldwell Banker (or any IT staff from its parent or affiliated companies) issued a commend to wipe or otherwise delete any content on Wilbur's iPhone, what procedures would be followed if such a command were issued, and whether those procedures were followed or utilized with respect to Wilbur's iPhone.
*5 It is further ORDERED that:
Defendant Jennifer Wilbur must, within ten days,
1. provide Coldwell Banker's counsel (or a vendor assisting such counsel) the full Cellebrite .UFDR or .UFD files (whichever is most complete or contains the most data accessible via the Cellebrite Reader software), associated with the extraction of her iPhone 12 Pro Max (A2342), iPhone 13 (A2482), and iPad Pro 12.9” (A1652). At a minimum, Wilbur must ensure that the Cellebrite data reflects any “deleted chats” or “deleted messages.”[3] The Cellebrite report shall be produced on an “Attorneys' Eyes Only” basis and without waiving any potential claim of privilege.
2. produce, in accordance with the ESI protocol, all emails responsive to RFP Nos. 2 through 4, from March 1, 2022 to the present, that are within Wilbur's actual or constructive possession, custody, or control, including but not limited to those from her personal @me.com address; and
3. produce, in accordance with the ESI protocol, all social media posts and social media messages (including on or through Facebook or other electronic platforms), as well as any and all other documents (including but not limited to an unredacted copy of her signed offer letter from Premier), from March 1, 2022 to the present, that are responsive to RFP Nos. 2 through 4 and within Wilbur's actual or constructive possession, custody or control—except that Wilbur need not produce documents or communications reflecting any restrictive covenants that she may have with Premier, as sought in RFP No. 4, unless those documents contain other responsive information;[4]
Defendant Taffie Dolson must, within 10 days,
1. provide Coldwell Banker's counsel (or a vendor assisting such counsel) the full Cellebrite .UFDR or .UFD files (whichever is most complete or contains the most data accessible via the Cellebrite Reader software), associated with the extraction of her iPhone (A2111), iPhone 13 Pro Max (A2484), and new Cellebrite reports for any other personal devices that contain responsive information to be extracted. At a minimum, Dolson must ensure that whatever Cellebrite data is provided will reflect any “deleted chats” or “deleted instant messages”;
2. produce in accordance with the ESI protocol, all emails responsive to RFP Nos. 2 through 4, from March 1, 2022 to the present, that are within Dolson's actual or constructive possession, custody, or control, including but not limited to those from her personal @gmail.com address and the @txtraining.net email address;[5] and
*6 3. produce, in accordance with the ESI protocol, all social media posts and social media messages (including on or through Facebook or other electronic platforms), as well as any and all other documents (including but not limited to an unredacted copy of her signed offer letter from Premier), from March 1, 2022 to the present, that are responsive to RFP Nos. 2 through 4 and within Dolson's actual or constructive possession, custody or control—except that Dolson need not produce documents or communications reflecting any restrictive covenants that she may have with Premier, as sought in RFP No. 4, unless those documents contain other responsive information.
Defendant Linda Sheinall must, within 10 days,
1. provide Coldwell Banker's counsel (or a vendor assisting such counsel) the full Cellebrite .UFDR or .UFD files (whichever is most complete or contains the most data accessible via the Cellebrite Reader software), associated with the extraction of the device associated with the phone number ending in -0561, and any personal devices that contain responsive information to be extracted. At a minimum, Sheinall must ensure that whatever Cellebrite data is provided will reflect any “deleted chats” or “deleted instant messages”;
2. produce in accordance with the ESI protocol, all emails responsive to RFP Nos. 2 through 4, from March 1, 2022 to the present, that are within Sheinall's actual or constructive possession, custody, or control, including but not limited to those from her personal @gmail.com address; and
3. produce, in accordance with the ESI protocol, all social media posts and social media messages (including on or through Facebook or other electronic platforms), as well as any and all other documents (including but not limited to an unredacted copy of her signed offer letter from Premier), from March 1, 2022 to the present, that are responsive to RFP Nos. 2 through 4 and within Sheinall's actual or constructive possession, custody or control—except that Sheinall need not produce documents or communications reflecting any restrictive covenants that she may have with Premier, as sought in RFP No. 4, unless those documents contain other responsive information.
Defendant Catherine Johnson must, within 10 days,
1. produce in accordance with the ESI protocol, all emails responsive to RFP Nos. 2 through 4, from March 1, 2022 to the present, that are within Sheinall's actual or constructive possession, custody, or control, including but not limited to those from her personal @gmail.com address;
2. produce, in accordance with the ESI protocol, all social media posts and social media messages (including on or through Facebook or other electronic platforms), as well as any and all other documents (including but not limited to an unredacted copy of her signed offer letter from Premier), from March 1, 2022 to the present, that are responsive to RFP Nos. 2 through 4 and within Sheinall's actual or constructive possession, custody or control—except that Sheinall need not produce documents or communications reflecting any restrictive covenants that she may have with Premier, as sought in RFP No. 4, unless those documents contain other responsive information.
Defendant Premier must, within 10 days,
1. produce, in accordance with the ESI protocol, all documents and communications from April 1, 2022 onward, regardless of their form, that are responsive to RFP No. 1 and within Premier's actual or constructive possession, custody or control;
*7 2. produce, in accordance with the ESI protocol, all documents and communications from March 1, 2022 onward, regardless of their form, that are responsive to RFP Nos. 2 and 4 and within Premier's actual or constructive possession, custody or control.
It is further ORDERED that Coldwell Banker's motion to compel is DENIED WITHOUT PREJUDICE in the following respects:
1. with respect to RFPs propounded to Individual Defendants,
a. RFP No. 1 is denied without prejudice to resubmitting a more tailored version of that request. If Coldwell Banker chooses to do so, Individual Defendants will have three days to lodge any objections and seven days from the date that the request is received (not the date of any objection) to produce responsive documents; and
b. RFP No. 4 is denied with respect to documents reflecting restrictive covenants, if any, between Individual Defendants and Premier (unless those same documents contain other responsive information), but without prejudice to seeking them during full discovery;
2. with respect to RFPs propounded to Premier,
a. RFP No. 3 is denied without prejudice to resubmitting a more tailored version of that request. If Coldwell Banker chooses to do so, Premier will have three days to lodge any objections and seven days from the date that the request is received (not the date of any objection) to produce responsive documents; and
b. RFP No. 5 is denied without prejudice to seeking these documents during full discovery.
Signed on November 1, 2022, at Houston, Texas.
Footnotes
The Court recognizes that Facebook, in particular, strips certain metadata from items that are uploaded. Nonetheless, Defendants have not shown that a third-party vendor lacks the capability to extract what metadata may exist for Facebook or any other social media platform.
Contrary to Defendants' suggestion, Dkt. 52 ¶ 7, Coldwell Banker is not attempting to expand the date range of documents responsive to these requests. The RFPs explicitly state that “[u]nless otherwise indicated, the temporal scope of the Requests is from March 1, 2022, through the time a final trial on the merits is concluded.” See Dkt. 38-1 at 23 ¶ 17 of pdf (Ex. D, general instructions). Because RFP Nos. 2 & 4 do not specify a different time period, all responsive Communications and Documents dated March 1, 2022 and onward must be produced.
All Cellebrite files and extractions addressed in this Order must include all available data that shows, at minimum: (a) call log information (incoming, outgoing, missed call history and any deleted call log data); (b) any SMS text messages, iMessages, or instant messages, application-based messages, and multimedia content, including embedded images in high-resolution, and deleted messages.
This ruling is without prejudice to Coldwell Banker seeking copies of any restrictive covenants Wilbur or other Defendants may have with Premier when full discovery proceeds.