I. INTRODUCTION

*1 By Order dated September 29, 2022 and pursuant to Federal Rule of Civil Procedure 53, the Court appointed this Special Master to evaluate and recommend resolutions to disputes regarding electronic discovery or as otherwise directed by the Court.

In connection with electronically stored discovery (“ESI”), the Parties reached agreement on the custodians at issue. The dispute focuses exclusively on ESI search terms and the review of e-mails and attachments related thereto. After diligent efforts by counsel in working with the Special Master, the dispute has been reduced to two sets of search terms and Plaintiff's request that Defendant log categories of documents not produced for responsiveness or relevance.

II. BACKGROUND

A. Relevant Factual Background

This putative class action alleges that Defendant's Warehouse Workers were, and are not, paid for all hours worked, as required by the Pennsylvania Minimum Wage Act (“PMWA”), 43 P.S. §§ 333.101, et seq. Plaintiff avers that Defendant violated the PMWA by failing to pay Plaintiff and other Pennsylvania warehouse workers overtime premium compensation for time associated with various required work activities, including, inter alia, time spent undergoing security screenings before and after their scheduled shifts and time spent walking within the warehouse. Defendant disputes such claims.

B. The ESI Dispute

Plaintiff asserts that after six months of negotiations with Defendant and numerous concessions made by Plaintiff, on August 8, 2022 the Parties reached agreement on the search term list to be run on Defendant's ESI when Plaintiff agreed to Defendant's proposed list of search terms, which Defendant's counsel described as “more than reasonable and more appropriately targeted at germane information.” Pl's Oct. 7, 2022 Letter Brief, Ex. 12 (Aug. 8, 2022 Kennedy email). Plaintiff requested that three additional terms be added to this list and Defendant otherwise agree. Id. (Aug. 8, 2022 Kennedy email). Plaintiff argues that on August 24, 2022, Defendant produced an ESI hit report for these results and despite its prior agreement to the search terms, it argued that it was too costly for its lawyers to review. Plaintiff argued that Defendant should make a production without a document-by-document review, except for identifying an applicable privilege through a search of attorneys’ names and that the ESI Protocol entered by the Court specifically contemplates procedures and protections for the inadvertent disclosure of any privileged documents.

Defendant takes the position that this is a straightforward wage and hour matter, involving discrete issues–namely, should non-exempt employees in Defendant's Pennsylvania warehouses be paid for time undergoing security checks at the start and end of their day, and should they be paid for time spent walking between the security check and their workstations. While Plaintiff correctly notes that he has somewhat limited his ESI since the start of discovery, Defendant contends that it is only because the initial demands were so overbroad that material narrowing was necessary before any realistic conversation could even be had. It contends that the universe of truly relevant and germane documents should therefore be narrow and limited, to time records and a few discrete items, such as certain payroll records that would not be located via ESI. Defendant further argues that even Plaintiff's narrowed proposed ESI protocol resulted in nearly 200,000 documents, which would cost a million dollars[1] for Defendant to review and would result in a massive amount of irrelevant material with scant information that is germane. As such, Defendant argues that Plaintiff's demand for ESI is disproportional to the needs of the case.

*2 Defendant also opposed Plaintiff's suggestion that ESI should be produced without review because the ESI is presumptively relevant. With regard to relevance, Defendant argues that the ESI terms do not seek inherently relevant documents and there is no guarantee any single term will produce responsive documents. Defendant contends that there are material confidentiality and security implications for Defendant, its customers and the public at large if ESI were produced without review. There are also, according to Defendant, operational security, logistical issues, and other security concerns unrelated to Plaintiff's claims and blind production could result in disclosure of, inter alia, confidential and sensitive customer information, such as personally identifiable information, addresses, order information, and other germane information; employee information having nothing to do with the instant claims, including potentially social security numbers and protectable health information, as well as other personal or confidential matters; and general security information.

The Special Master directed the Parties to submit letter briefs outlining the disputed search terms and their respective positions. Thereafter, the Parties and Special Master engaged in two video conference hearings and additional email communications. While working with the Special Master, the Parties were able to reach consensus on a number of issues and reduce the number of unique documents from 198,000 to 81,532 (which is the subject of one of the remaining disputes). The relevant background relating to the remaining two disputed search terms is set forth below.

On October 12, 2022, counsel for the Parties met with the Special Master. At that time, Defendant's counsel advised that the ESI had been archived, remained on the UPS system and had not yet been transferred to counsel's law firm system. E-mail threading of the ESI had not been performed.[2] At that meeting, the Special Master directed: (1) Defendant to promptly have its ESI moved onto a system that would allow for robust searching and threading technologies; (2) Defendant to run threading on its ESI and report on the updated number of documents; (3) Defendant to identify all objectionable search terms and the specific basis for its objection to such terms; and (4) Plaintiff to respond to Defendant's objections to search terms.

In a letter brief on October 14, 2022, Defendant identified all objectionable search terms and the basis for its position. Defendant also proposed additional limitations to the search terms. On October 17, 2022, Plaintiff responded to Defendant's objections to the search terms and despite Plaintiff's view that the August 8th search terms were already appropriately tailored to the claims at issue, Plaintiff agreed to eliminate certain search terms and opposed other of Defendant's proposed modifications.

On October 27, 2022, counsel for Defendant advised that the following activities had been completed: (i) threading of Defendant's ESI; (ii) removal of the two revised searches agreed to by Plaintiffs which utilized the term “incident” (incident* /20 security*) and (incident* /20 walk*); and (iii) removal of non-responsive auto-generated “cover e-mails”.[3] Following this process, Defendant advised that there were 86,052 unique documents, inclusive of e-mails and attachments. Defendant argued that this reduced set of documents remains a substantial set of ESI documents for review, the searches should be more targeted at responsive documents and proposed further modifications to the search terms to reduce the ESI dataset.

*3 On November 2, 2022, the Special Master had a working meeting with counsel for the Parties to review the most recent hit list of ESI documents. During that meeting, consensus was reached by the Parties to modify certain search terms in an effort to reduce the data set. Plaintiff's counsel also tentatively agreed to allow Defendant to modify the searches “walk* w/20 (security* OR screen* OR designated*)” and “pass* w/20 (security* OR screen* OR designated*)” to reduce the connector from within 20 to within 10. In doing so, Plaintiff reserved the right to preserve its objection after reviewing the updated hit list.

On November 8, 2022, counsel for Defendant reported that based on the updated searches agreed to at the November 2, 2022 working meeting with the Special Master, the number of reviewable documents was 81,532, yielding a further reduction of approximately 4,500 documents. Defendant also asserted that it identified substantial irrelevant communications and documents based on the aforementioned searches, and believe that a further narrowing of the modifiers of “screen” and “check” within three words of “security” remains appropriate to better target responsive e-mails.

On November 9, 2022, Plaintiff responded to Defendant's updated hit report and email. Plaintiff objected to the modification to reduce the connector from within 20 to within 10 because the modification would remove thousands of documents that might be highly relevant, particularly in light of the fact that Defendant's counsel previously agreed to the prior search terms reasonable and appropriately targeted at germane information. Additionally, Plaintiff opposed Defendant's proposal to further limit documents responsive to the term “security.” Nevertheless, in an effort to compromise, Plaintiff offered to proceed with the “within 10” connector provided that Defendant's request to further modify all terms containing “security” was rejected. In an email response on the same date, Defendant declined Plaintiff's proposal. Defendant continued to argue for its proposed modified search terms and opposed any request to log documents.

III. REMAINING DISPUTES

The Special Master's meetings with counsel resulted in a number of concessions by the Parties resulting in modifications to the search terms by consent and reducing the data set by more than 50%. The remaining disputes are listed below and addressed herein.

A. Whether the word “security” should be modified to “(security* /3 (screen or check*))

Defendant argues that all searches which rely on the generic term “security” are overbroad and not reasonably targeted because the vast majority of such searches have nothing to do with security screening and are often coupled with other generic terms such as pay, paid, busy, wait etc. It further argues that it identified substantial irrelevant communications and documents based on the current searches and believe that the searches should replace the word “security” with “(security* /3 (screen or check*))” to better address the claims at issue. Finally, Defendant argues that without such modifiers, the results will include substantial irrelevant hits because the term “security” in Defendant's parlance relates to extensive matters unrelated to this case.

*4 Plaintiff opposed Defendant's proposal because the term “security” is already a modified term and the proposed additional modifiers of “screen” and “check” represent an inappropriate effort by Defendant to narrow the uncompensated time at issue. According to Plaintiff, Defendant's proposed modifiers inappropriately attempt to cabin Plaintiff's claims to only time spent in the security check, cutting out the uncompensated time at issue before and after the check, including, for example, time spent walking to and from their reporting location. Plaintiff asserts that his claims are broader and addresses uncompensated time that warehouse workers spend waiting for, and undergoing, security checks and walking to and from the security check to their reporting location.

Defendant disagreed that limiting the term “security” somehow cabins ESI to solely documents regarding time spent in security check. According to Defendant, it is unclear how the term “security” even targets the walking time claims since there is no general allegation that security plays any role with respect to walking time.

Federal Rule of Civil Procedure 26(b)(1) mandates that discoverable information must be both relevant and proportional to the needs of the case. Specifically, Rule 26(b)(1) provides:

FED. R. CIV. P. 26(b)(1).

Each of these factors is discussed below.

In this putative class action, Plaintiff avers that Defendant violated the PMWA by failing to pay Plaintiff and other Pennsylvania warehouse workers overtime premium compensation for time associated with various required work activities, including, inter alia, time spent undergoing security screenings before and after their scheduled shifts and time spent walking within the warehouse. The Declaration of Policy for the PMWA states that its purpose is to protect Pennsylvanians from wages that are unreasonably low and not fairly commensurate with the value of the services rendered. As such, the issues at stake in this case are important. See 43 P.S. §§ 333.101.

According to the Complaint, the aggregate damages sought on behalf of the Plaintiff and putative class exceed $5 million. The amount in controversy therefore weighs in favor of allowing the sought-after discovery.

The requested documents consist of emails and related attachments maintained by Defendant. Because Defendant has complete and exclusive control over its ESI, Plaintiff has no way of obtaining such information other than from Defendant through discovery. This factor weighs in favor of the proportionality of the sought-after discovery.

No information was provided by the Parties in connection with this factor but given the size of Defendant as compared to its employee, Mr. Malone, this factor weighs in favor of Plaintiff.

As an initial matter, it should be noted that Defendant previously described the August 8, 2022 search terms as “more than reasonable and more appropriately targeted at germane information.” Pl's Oct. 7, 2022 Letter Brief, Ex. 12 (Aug. 8, 2022 Kennedy email). While Defendant argues that the statement was made before appreciating the actual number of documents captured by those search terms and it now views the search terms as too broad, the Parties have diligently worked with the Special Master to significantly narrow the dispute to only two primary areas of dispute. Based on my review and analysis of the Parties’ arguments and the latest search terms, it is my assessment that the current version of the search terms, subject to my recommended further limitations, as noted below in Section III.B.2, are important in resolving this issues presented by this case.

*5 Throughout this dispute, Defendant opposed the production of documents based on the burden and expense of document review. Its primary argument has been that the search terms produced too many unique documents and that a document-by-document review for responsiveness, confidentiality and privilege would be prohibitively costly. Defendant further argues that without its additional proposed modifiers, the result will include substantial irrelevant documents because the term “security” in Defendant's parlance relates to matters unrelated to this case (e.g., transportation security, information security, etc.).

It is important to note that the term “security” is already a modified term in the search terms and that Defendant is suggesting further modifications to that term. While Defendant continues to assert that the already modified search terms are not sufficiently narrow and the results of the unmodified term will include substantial irrelevant hits, Defendant has not however provided any evidence of testing to show whether its proposed modification of the search terms to change the word “security” to “(security* /3 (screen or check*))” would eliminate significant numbers of responsive documents captured by the previously agreed August 8, 2022 search terms. Without such information, I cannot assess the incremental value of Defendant's proposal and its effect on the production of relevant documents.

With regard to burden and expense, Defendant did not provide any supporting documents to suggest that its proposed modification would result in a significant reduction of the costs of review. Defendant has also made the decision to not avail itself of available technology for document review or use contract attorneys at lower rates to engage in a document by document review. While Defendant is entitled to reject such options, they would have likely reduced the burden and/or expense associated with review and production.

Plaintiff has already made a significant number of concessions to address Defendant's concerns regarding the breadth of the search terms and during the Parties’ work with the Special Master, a number of changes have been made to the search terms to more narrowly tailor them.

Based on the foregoing, Defendant has not shown that the burden or expense of adding an additional modifier to the word “security” to all searches outweighs the likely benefit. I therefore conclude that the scales tip in favor of Plaintiff on the proportionality analysis and recommend that Defendant's proposed modification of the word “security” to “(security* /3 (screen or check*))” be rejected.

B. Whether the search terms “walk* w/20 (security* OR screen* OR designated*)” and “pass* w/20 (security* OR screen* OR designated*)” should be modified to reduce the connector from within 20 to within 10

During a working meeting with counsel for the Parties and the Special Master, Plaintiff tentatively agreed to allow Plaintiff to run a new hit list with modification of the search terms “walk* w/20 (security* OR screen* OR designated*)” and “pass* w/20 (security* OR screen* OR designated*)” wherein the connector was changed from within 20 to within 10. The basis for Plaintiff's agreement was to identify its impact on the search term hit list.

After the modification was included in the search terms, the hit list reflected that the modification would remove thousands of documents. As a result, Plaintiff objected to the modification. Plaintiff contends that these removed documents might be highly relevant documents, as the previously agreed-upon terms (which Defendant proposed) are directly relevant to the claims at issue, and Defendant itself had previously described these terms as more than reasonable and more appropriately targeted at germane information.

*6 Despite its objection, Plaintiff expressed interest in finally resolving the disputes over search terms and offered a compromise to Defendant in which Plaintiff would agree to within 10 limit if Defendant withdrew its request to modify the word “security” to “(security* /3 (screen or check*))” which is addressed above.

Defendant declined the offer to reach compromise and argued that all terms that rely on the generic term “security” are overbroad and not reasonably targeted because the vast majority have nothing to do with security screening and are often coupled with other generic terms such as pay, paid, busy, wait etc.

While Plaintiff argues that the modified search terms would reduce the document set by approximately 2,500 unique documents. While I acknowledge that Plaintiff has no control over the search terms hit list or the related review of documents, without any testing performed on the search terms, there is no basis to assess whether the documents excluded are actually relevant documents or merely, irrelevant documents that include the search terms.

Even as modified, the search terms “walk* w/10 (security* OR screen* OR designated*)” and “pass* w/10 (security* OR screen* OR designated*)” are designed to capture a broad number of documents, which is likely why Plaintiff offered to consider changing the connector from within 20 to within 10. It is also worth noting that even after Plaintiff learned that these modifications would reduce the document set by less than 2,500 unique documents, he still offered to finally resolve both sets of disputed search terms by offering Defendant a final compromise that would have included the within 10 connector.

Based on my review and analysis, I find that the search terms “walk* w/10 (security* OR screen* OR designated*)” and “pass* w/10 (security* OR screen* OR designated*)” are reasonable.

C. Plaintiff's Request That Documents Withheld on the Basis of Responsiveness or Relevance Should be Logged

Plaintiff requests that, in light of Defendant's narrow view of relevance and the history of this dispute, Defendant should log the categories of documents withheld on the basis of responsiveness or relevance.

Defendant opposed the request that it log irrelevant documents because there is no basis in law or the Federal Rules of Civil Procedure for such a requirement. It further argues that such a requirement would be costly, time consuming, slow discovery, and have no purpose other than to burden Defendant, as it is unclear how a list of irrelevant material would be probative of anything.

There is no basis to suggest that Defendant will not engage in appropriate pre-production review of documents. Nor is there a basis to require Defendant to log documents withheld as non-responsive or irrelevant. If and when Plaintiff has concerns regarding withheld documents, he can bring such disputes to the Court for resolution.

IV. CONCLUSION

For the reasons set forth above, it is my recommendation that:

Respectfully Submitted

/s/ Sandra A. Jeskie

Sandra A. Jeskie

DUANE MORRIS LLP

30 South 17th Street

Philadelphia, PA 19103-4196

215.979.1395