Int'l Unions Sec. Police & Fire Prof'ls of Am. v. Maritas
Int'l Unions Sec. Police & Fire Prof'ls of Am. v. Maritas
2023 WL 9229111 (E.D. Mich. 2023)
September 27, 2023
Davis, Stephanie D., United States Magistrate Judge
Summary
The Court ordered an expert computer forensic examination of Defendants' Electronic Devices and narrowed the search terms to “SPFPA”, “Hickey”, and/or “Phillips”. Defendants were also ordered to pay outstanding invoices to the electronic discovery vendor and complete their relevancy and privilege review of the documents yielded by the narrowed search terms. A final report on deleted ESI was also ordered, and Plaintiffs have 21 days to renew their motion for spoliation sanctions.
Additional Decisions
INTERNATIONAL UNIONS, SECURITY POLICE AND FIRE PROFESSIONALS OF AMERICA (SPFPA), an International Union, and DAVID L. HICKEY, the International President of the Security Police and Fire Professionals of America, Plaintiffs,
v.
STEVE MARITAS, an individual, CALVIN WELLS, an individual, and LAW ENFORCEMENT OFFICERS SECURITY UNION, an unincorporated union, Defendants
v.
STEVE MARITAS, an individual, CALVIN WELLS, an individual, and LAW ENFORCEMENT OFFICERS SECURITY UNION, an unincorporated union, Defendants
Case No.: 2:19-cv-10743
United States District Court, E.D. Michigan, Southern Division
Filed September 27, 2023
Counsel
J. David Garcia, Jaye Quadrozzi, Joshua Apel, Young, Garcia & Quadrozzi, PC, Farmington Hills, MI, for Plaintiffs.Thomas M. Nunley, Nunley Wheelock, West Bloomfield, MI, for Defendants.
Davis, Stephanie D., United States Magistrate Judge
REPORT AND RECOMMENDATION OF DISCOVERY MASTER No. 2 RE: CASE MANAGEMENT
*1 This Report and Recommendation will address and recommend a case management plan for the remaining discovery-related issues in this case.
I. Background
a. The Forensic Review/Report
In the Court's Order Adopting Report and Recommendation [61] (the “Order” -- ECF No. 64), the Court granted in part Plaintiffs' motion for sanctions (ECF 29), ordered an expert computer forensic examination of Defendants' Electronic Devices, and denied Plaintiffs' requests for sanctions without prejudice, preserving Plaintiffs' right to renew or revise their requests for the same or other relief based on the results of the expert's examination and report. ECF No. 64, PageID.2353-54.
Pursuant to the Order and the and the Report and Recommendation (the “R&R” – ECF No. 61), Avalon Legal (“Avalon”) was retained as the electronic discovery vendor. Avalon subsequently collected and imaged multiple types of electronic data and submitted an Analysis/Reporting Overview as of 12/19/2022. Avalon then loaded the email files to a Relativity ECA workspace, filtered by the search terms identified by the Discovery Master based on input from counsel for all parties, and made the workspace available to Defendants' counsel for a privilege and relevancy review. Defendants have been conducting but have not yet completed the privilege and relevancy review.
b. Mediation
The Court's Order Appointing Discovery Master provides that “the Master may CONDUCT hearings, settlement conferences, and mediations with the parties in the manner and at the times and locations he deems appropriate.” ECF No. 58. In light of numerous developments in this case and other litigation between the parties over the course of the last several months, the Discovery Master determined that it would be a sensible and efficient use of the Parties' and the Court's time to require the Parties to engage in mediation in an effort to achieve a resolution of the numerous disputes between the Parties. Beginning in July 2023, the Parties have engaged with the Discovery Master in a mediated effort to settle. The mediation has now concluded without a settlement.
c. Remaining Discovery-Related Issues
Counsel for Defendants contends that application of the search parameters to the data collected has yielded a pool of electronically stored information (“ESI”) so large that reviewing all responsive documents would be unduly burdensome and not proportional to the needs of the case. Consequently, counsel for Defendants has requested that the search terms be narrowed to focus on a more manageable and appropriately targeted set of ESI.
The Discovery Master directed Avalon to administratively put the database on “cold storage” status beginning July 1, 2023 to avoid the Relativity database expense while the parties engaged in mediation. Once the question of search terms has been resolved, the Relativity database will have to be reengaged so that Plaintiffs can conclude the privilege and relevancy review.[1]
*2 Counsel for Plaintiffs has requested either the Avalon Analysis/Reporting Overview as of 12/19/2022 be confirmed as the report addressing Maritas' deletion of ESI called for in the Order and R&R, or that Avalon issue a final report on that issue now, so that the parties can move ahead with any follow-up to its initial motion for spoliation sanctions (ECF No. 29) as the parties concurrently continue to review the leftover ESI located on Maritas' various devices.
Having carefully considered the parties' positions and arguments of counsel, the Discovery Master has determined that no further argument of counsel is necessary, and hereby issues this Report and the Recommendations set forth below.
II. Discovery Master's Recommendations
The Discovery Master recommends that the Court:
- Based on information from Avalon, I find that after privilege screening for correspondence between legal counsel and Defendants, the search terms originally proscribed yielded approximately 65,000 emails for review. Narrowing the search terms to “SPFPA”, “Hickey”, and/or “Phillips” will reduce the number of emails for review to approximately 25,000. Further, I find that the original set of review criteria was overbroad and requiring privilege screening and/or production of the larger set of documents based on the original set of review criteria would be unduly burdensome and disproportional to the needs of the case. Consequently, the search terms to be applied to the pool of ESI should be limited to “SPFPA”, “Hickey”, and/or “Phillips.”
- Defendants should be ordered to pay all outstanding Avalon invoices within 14 days.
- Defendants should be ordered to (a) complete their relevancy and privilege review of the documents yielded by application of the search terms in ¶1, above, (b) provide Plaintiffs with a privilege log under FRCP 26(b)(5) identifying any information being withheld from a discovery production as privileged; and (c) produce all ESI not identified on the privilege log within 35 days.
- Avalon should be given 14 days within which to provide a final report evaluating whether Defendants' deleted ESI has been or could be restored or replaced, and explaining, to the extent possible based on the information made available to the Vendor, the timing, manner, extent, and nature of Defendants' deletions of ESI to the parties and Discovery Master.
- Plaintiffs should be given 21 days after receipt of Avalon's final report called for in ¶4, above, within which to renew, revise, refile and/or abandon their motion for spoliation sanctions (ECF 29).
III. Conclusion
The Discovery Master makes this Report and Recommendations for the reasons set forth above pursuant to the authority provided in the Court's Order Appointing Discovery Master dated June 29, 2022. ECF No. 58, PageID.2310-11. Pursuant to that Order, unless the court sets a different time, any objection to this Report and Recommendation must be filed no later than fourteen days after a copy is filed on the docket, and responses to any objections must be filed no later than fourteen days after objections are filed on the docket. Failure to timely object to this Report and Recommendation is a permanent waiver of any objection to it such that the report and recommendations are deemed approved, accepted, and ordered by the Court.
Respectfully submitted,
Dennis M. Barnes (P39401)
DENNIS M. BARNES, PLLC
8540 Canton Center Road
Canton, Michigan 48187
(248) 736-4828
Dennis@BarnesADR.com
Footnotes
Avalon has informed the Discovery Master that Defendants are behind on payment of its invoices. Consequently, Plaintiffs will have to pay all outstanding invoices before Avalon will reengage the Relativity database and make it available for Defendants to conclude their privilege and relevancy review.