Beganovic v. Tyson Fresh Meats, Inc.
Beganovic v. Tyson Fresh Meats, Inc.
2023 WL 9503379 (N.D. Iowa 2023)
May 12, 2023
Mahoney, Kelly K. E., United States Magistrate Judge
Summary
The court granted the plaintiffs' motion to compel the defendant to produce responsive documents after a certain date and to conduct a reasonable search for ESI. The court also ordered the defendant to identify employees whose Annual Incentive Plan payments were adjusted and reminded the defendant of its obligation to conduct a reasonable search for responsive ESI related to the plaintiffs' separation from the defendant.
HAMDIJA BEGANOVIC, et al., Plaintiffs,
v.
TYSON FRESH MEATS, INC., Defendant
v.
TYSON FRESH MEATS, INC., Defendant
Case No. 22-CV-2052-LTS-KEM
United States District Court, N.D. Iowa, Eastern Division
Filed May 12, 2023
Mahoney, Kelly K. E., United States Magistrate Judge
ORDER
*1 Currently pending before the court is Plaintiffs' motion to compel. Doc. 42. Defendant resists (Doc. 44), and Plaintiffs filed a reply (Doc. 45). I do not find oral argument necessary.[1] I grant the motion in part and deny the motion in part.
In Interrogatory 11, Plaintiffs requested a list of documents concerning Plaintiffs and the Annual Incentive Plan from October 1, 2020, to January 31, 2021. Doc. 42-1. Similarly, in RFP 8, Plaintiffs sought documents discussing their potential AIP award for 2019-2020. In its initial response to both requests, Defendant stated that the request did not identify custodians or reasonable search terms. Doc. 37-2 at 5, 21.[2] Defendant stated, however, that it would produce nonprivileged, relevant correspondence “related to Plaintiffs' 2019-2020 [AIP] amounts.” Id.
Plaintiffs argue that Defendant improperly limited its production to documents related to “AIP amounts,” rather than the AIP generally. Plaintiffs argue “[t]he search terms and custodian are obvious as the request was sent to the Defendant ... and the search terms would be Annual Incentive Plan or AIP and the name of each individual Plaintiff.” Doc. 42-1 at 6. Plaintiffs also note that “Defendants have cut off production of any documents” after “November 24, 2020 for unknown reasons.” Id. Plaintiffs note they were discharged December 15, 2020, and request Defendant “be ordered to produce all such documents on into 2021 if they exist.” Id.
Defendant's resistance does not respond to Plaintiffs' argument related to RFP 8. Defendant generally argues, however, that documents dated after “the decision to deny [Plaintiffs] their bonuses [cannot] be relevant to the decision to deny them bonuses.” Doc. 44 at 6. In resisting Plaintiffs' motion to compel related to Interrogatory 11, Defendant argues that Plaintiffs requested “that email inboxes of every single Tyson employee be searched.” Doc. 44. Defendant argues that searching 100,000 custodians for documents would be unduly burdensome and that they have produced non-privileged responsive documents. Id. Plaintiffs' reply does not respond to this argument.
The parties may negotiate an ESI[3] protocol that gives Plaintiffs a say into the custodians and search terms used when searching for responsive emails. But it does not appear that was done here. When no ESI protocol is in place, a party must “conduct[ ] a reasonable inquiry for responsive information”—including ESI.[4] A party should work with its employees and attorneys “to identify all employees likely to have been authors, recipients or custodians of documents” responsive to the requests for production.[5]
[A]sking a court to compel a party to search the ESI of additional custodians is similar to asking a court to compel a party to undertake additional efforts to search for paper documents. In either case, the requesting party is second-guessing the responding party's representation that it conducted a reasonable inquiry for responsive information, and in either case, the burden appropriately lies with the requesting party to show that the responding party's search was inadequate.[6]
*2 On the one hand, Defendant's initial objection concerns the court, as it suggests Defendant believed that it need not produce ESI if not specifically requested and if no custodians or search terms were identified. Defendant could have worked with Plaintiffs to identify custodians and search terms; if it chose not to, it must still conduct a reasonable search for responsive ESI. A party may not decline to produce ESI simply because it was not specifically requested or because search terms and custodians were not identified.
On the other hand, the rules do not require Defendant to search the emails of all 100,000 of its employees, which would be unduly burdensome and result in many custodians with no connection whatsoever to the issues in this litigation. It is unclear what search terms and custodians Defendant used, if any, but Plaintiffs have not shown Defendant's ESI search was unreasonable. The lack of clarity on this issue—what was or was not produced and what additional actions Plaintiffs seeks—suggest that the parties did not meet-and-confer as required on this issue.
I do find, however, that Defendant must produce responsive documents after November 24, 2020. Defendant's argument that such documents are not relevant is ridiculous, quite frankly. Plaintiffs were not even officially terminated until mid-December, and the reasons their bonuses were denied or they were terminated could have been discussed after-the-fact.
Accordingly, Plaintiffs' motion to compel with respect to Interrogatory 11 and RFP 8 is granted in part and denied in part: it is granted to the extent Plaintiffs seek to compel Defendant to produce documents after November 24, 2020, but it is denied to the extent Plaintiffs seek Defendant to use every employee as a custodian.
In support of its motion for summary judgment, Defendant submitted a declaration that “all AIP payouts” are “subject to discretionary adjustments until the payment date”; that “[t]here is no point at which the decision-making process for discretionary adjustments is closed”; and that although “some eligible employees receive statements notifying them of their anticipated payout” prior to the payment date, this is not “a final statement of the employee's award.” Doc. 20-6. In Interrogatory 12, Plaintiffs ask Defendant to identify other employees who, like Plaintiffs, received notice of an AIP payment but ultimately did not receive this payment. RFP 23 seeks related documents. Plaintiffs contend Defendant's declaration submitted in support of summary judgment suggests this is a fairly common occurrence. In responding to Plaintiffs' interrogatory request, Defendant stated it does “not retain[ ]” this information “in the course of Tyson's business.” Doc. 37-2 at 22.
In its response to the motion to compel, Defendant states it adequately responded to this request by identifying similarly situated employees—those employees who engaged in the same alleged misconduct as Plaintiffs here. But Plaintiffs' interrogatory is not limited to employees who allegedly engaged in misconduct. Rather, Plaintiffs seek to challenge the statement in Defendant's declaration that AIP payments could be changed after an employee received notice. Plaintiffs agreed to limit their requests to the 2019-2020 AIP plan year and documents created in 2020.
I agree with Plaintiffs that whether Defendant adjusted other payments after providing the employee with notice of the payment is highly relevant to Plaintiffs' claims and goes to the heart of the dispute. Defendant may not have a list of this kind of information, but surely there is a way for Defendant to compare notices to employees with the actual payment (or at the very least, to produce this information to Plaintiffs for Plaintiffs to make this comparison themselves).
*3 Accordingly, Plaintiffs' motion to compel a response to Interrogatory 12 and RFP 23 is granted. Defendant must identify employees whose AIP payment for 2019-2020 was adjusted from the original amount noticed. If none exist, Defendant must so state in an updated interrogatory response.
In RFPs 5, 9, and 13, Plaintiffs seek documents related to their separation from Tyson, including documents related to Tyson's investigation of the alleged betting scheme. Plaintiffs contend that although Tyson produced their personnel files, they contain nothing related to the reasons for their discharge. Defendant responds that it has produced nonprivileged, responsive documents. In reply, Plaintiffs argue Defendant admitted additional responsive documents exist through the declaration of outside counsel who was retained to interview Plaintiffs in this case. See Doc. 44-1 at 9. The declaration states there was no “contemporaneous” transcription of the interviews nor “final written report” to Defendant of the investigation.
The court cannot compel Defendant to produce documents that do not exist. The court reminds Defendant, however, that the rules require it to conduct a reasonable search for responsive ESI and that a party does not “meet its discovery obligations by sticking its head in the sand and refusing to look for documents.”[7] In responding to this discovery request, the court expects that Defendant searched for emails discussing Plaintiffs' discharge. In addition, the declaration does not state that nobody took notes of the interviews or sent emails about the interviews, and such documents would be responsive to Plaintiffs' requests (to the extent Defendant is claiming privilege, such documents need to be listed on a privilege log).
Ultimately, there does not appear to be anything for the court to order Defendant to produce at this time. Accordingly, with this warning to Defendant, the court denies as moot Plaintiffs' motion to compel with respect to RFPs 5, 9, and 13.
In RFP 6, Plaintiffs seek documents showing Defendant's policies and procedures for the AIP payment for 2019-2020. Plaintiffs note that a “timeline memo was sent out in the fall of 2020 revealing the timeline and procedure for AIP awards,” but Defendant has not produced this timeline. RFP 21 specifically requests this timeline document. Plaintiffs note the timeline was mentioned in an email to Plaintiff Thomas Hart. Defendant states that it supplemented its production on March 31, 2023, with thousands of documents (after Plaintiffs filed the motion to compel) after Plaintiffs met and conferred with Defendant as ordered by the court and “described what they sought.” Doc. 44. Defendant states it produced “e-mails pertaining to the award” and that “[i]t is unclear what, if anything, Plaintiffs still seek.” Id. Defendant notes it specifically searched Hart's emails for any reference to the AIP plan and produced what was found. Id. Plaintiffs' reply does not respond to Defendant's arguments related to this new production.
It is unclear to the court whether Defendant's March 31, 2023 production included the “timeline memo” email. But it appears that Defendant searched for this email after the parties further met and conferred. The court cannot order Defendant to produce documents that do not exist. And Plaintiffs have not established that Defendant failed to conduct a reasonable search for ESI responsive to RFPs 6 and 21. Accordingly, Plaintiffs' motion to compel related to RFP 6 and 21 is denied.
*4 In RFP 10, Plaintiffs seek correspondence discussing Plaintiffs' 2020 AIP award. They also seek records related to their AIP plan in RFP 21. Plaintiffs argue that Defendant has not produced a single document discussing the denial or recission of their AIP award, nor has it produced any documents dated after November 24, 2020. Plaintiffs have agreed to limit their request to documents dated from October 2020 to January 2021.
Defendant's resistance notes that after meeting and conferring with Plaintiffs, they searched for responsive ESI and produced thousands of supplemental documents after Plaintiffs filed the motion to compel. As with other requests, the court cannot order Defendant to produce documents that do not exist. To the extent Plaintiffs contend that Defendant has not conducted an adequate search for ESI, the parties should work together to determine search terms and custodians, but at this point, the court does not have sufficient information to say that Defendant did not conduct a reasonable search.
Plaintiffs' motion to compel with respect to RFPs 10 and 21 is denied.
In RFP 11, Plaintiffs seek communications about their employment with Defendant. Plaintiffs have agreed to limit the timeframe to October 1, 2020, to December 30, 2020. Defendant objects on relevance grounds, arguing that “correspondence about vacation or whether they once sought a transfer is not relevant.” Defendant states “[r]equiring every shred of correspondence unrelated to this case to be logged or produced, when not at issue,” is harassing. Doc. 44. Plaintiffs respond that Defendant has raised “unclean hands” as an affirmative defense, making the reason for their termination relevant.
Under Federal Rule of Civil Procedure 26(b)(1):
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.
For relevance objections, the party requesting discovery must make “[s]ome threshold showing of relevance.”[8] The burden then rests with the resisting party to establish that the requested information falls outside “the broad scope of relevance” from Federal Rule of Civil Procedure 26(b)(1) or that the marginal relevance of the requested information is outweighed by the potential burden of providing the discovery.[9]
Here, Plaintiffs have established the threshold relevance of emails discussing them from October to December 2020. These emails may discuss their AIP award and the decision to terminate their employment. These emails may also generally discuss their job performance. Although some emails may prove only marginally relevant, the limited time frame (from October to December 2020) means that most of the requested emails will likely bear directly on the issues in this case. And although Plaintiffs have made more targeted requests for some of these emails, Defendant has not otherwise produced these emails (e.g., Defendant has not found emails discussing the decision to terminate Plaintiffs' employment). Defendant's boilerplate objection based on burden is not well-received—Defendant does not provide any information to establish the burdensomeness of the request, such as a “hit count” for the number of emails.
*5 Accordingly, Plaintiffs' motion to compel with respect to RFP 11 is granted. Defendant must search for and produce emails discussing Plaintiffs from October to December 2020 (or otherwise log such emails on a privilege log).
Plaintiffs note that for all requests, Defendant generally withheld documents dated after November 24, 2020. Defendant did not include documents after this date on a privilege log, instead contending that Plaintiffs were discharged based on a “privileged legal investigation.” Plaintiffs ask that any of Defendant's privilege objections for documents dated after November 24, 2020, be overruled for failure to list them on the privilege log or to otherwise note in its objections that it was withholding such documents on relevance grounds.
Defendant argues that documents after November 24, 2020, are irrelevant, an argument I have already rejected. Defendant's resistance makes many arguments to support its privilege claim, including that emails between nonattorneys may be privileged. But Defendant does not respond to Plaintiffs' contention that it refused to list documents dated after November 24, 2020, on a privilege log.
Federal Rule of Civil Procedure 26(b)(5)(A) provides:
When a party withholds information otherwise discoverable by claiming that the information is privileged ..., the party must:(i) expressly make the claim; and(ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.
The advisory committee notes state that “[t]o withhold materials without such notice is contrary to the rule, subjects the party to sanctions under Rule 37(b)(2), and may be viewed as a waiver of the privilege.”[10] Waiver of attorney-client privilege “is reserved as a serious sanction ‘for cases of unjustified delay, inexcusable conduct, and bad faith.’ ”[11]
Defendant bears the burden of proving attorney-client privilege.[12] Iowa law governs the application of attorney-client privilege in this diversity case.[13] Attorney-client privilege “is a two-way street[,] ... protect[ing] both the ‘giving of professional advice to those who can act on it’ and ‘the giving of information to the lawyer to enable him to give sound and informed advice.”[14] The privilege protects “communications, not facts,”[15] and “not every communication to an attorney falls within the privilege.”[16] To determine whether a communication between inhouse counsel and an employee of the corporation is privileged, Iowa law “focus[es] on the substance and purpose of the communication”:
If an employee of a corporation or entity discusses his or her own actions relating to potential liability of the corporation, such communications are protected by the attorney-client privilege. If, on the other hand, a corporate employee is interviewed as a “witness” to the actions of others, the communication should not be protected by the corporation's attorney-client privilege. When a corporate employee participates in discussions with legal counsel because of his or her position within the corporate decision making structure, not because of either the employee's own actions or what the employee has witnessed, such communications are also protected by the corporation's attorney-client privilege.[17]
*6 It appears to the court that Defendant has withheld all documents related to the investigation of the betting pool and Plaintiffs' termination as attorney-client privileged, simply because Defendant hired outside counsel to conduct the investigation. This stance is contrary to Iowa law on attorney-client privilege in the corporate context.[18] In addition, Defendant has unilaterally withheld documents dated after November 24, 2020, without explaining that decision to Plaintiffs or listing the documents on a privilege log. Because Defendant did not inform Plaintiffs that they were withholding documents after that date, I find it a close call whether their actions amounted to bad faith such that they can be said to have waived the attorney-client privilege. Ultimately, however, I decline to find waiver based on Plaintiffs' failure to fully raise the issue to Defendant prior to filing the motion to compel.
Defendant must produce an updated privilege log that specifically logs each document claimed as privileged, including those documents dated after November 24, 2020. Defendant's descriptions on the privilege log must provide sufficient information to allow Plaintiffs to assess whether the document is truly privileged. Defendant should also re-evaluate their privilege claims given the court's guidance in this order and produce those documents that do not meet Iowa's standards for attorney-client privilege in the corporate context.
It appears to the court that both parties carry blame for the discovery issues in this case. It seems that Defendant initially produced no ESI (or at least, conducted inadequate searches for ESI) and is attempting to resist its discovery obligations based on its pending motion for summary judgment (even though no stay has been entered). On the other hand, it does not seem that Plaintiffs adequately raised their issues to Defendant before resorting to motion practice (although Plaintiffs were perhaps deterred by Defendant's refusal to compromise on many of the issues, including Defendant's frivolous position with regards to documents dated after November 24, 2020). Because of the lack of discussion between the parties, the dispute has not been narrowed, and the court could not rule with any real clarity on many of the issues. Ultimately, it may be in the parties' best interest to meet and confer regarding an ESI protocol and negotiate custodians and search terms.
I GRANT IN PART AND DENY IN PART Plaintiffs' motion to compel (Doc. 42). Within three weeks of the date of this order, Defendant must update its discovery responses and privilege log as discussed in this order.
SO ORDERED on May 12, 2023.
Footnotes
Beganovic cites to some exhibits filed in support of his prior motion to compel.
Electronically Stored Information.
Enslin v. Coca-Cola Co., No. 2:14-cv-06476, 2016 WL 7042206, at *3 (E.D. Pa. June 8, 2016).
Robinson v. City of Ark. City, Kan., No. 10-1431-JAR-GLR, 2012 WL 603576, at *4 (D. Kan. Feb. 24, 2012) (quoting Cardenas v. Dorel Juvenile Group, Inc., No. 04–2478–KHV–DJW, 2006 WL 1537394, at *6-7 (D. Kan. June 1, 2006).
Enslin, 2016 WL 7042206, at *3.
Robinson, 2012 WL 603576, at *4) (quoting In re Indep. Serv. Org. Antitrust Litig., 168 F.R.D. 651, 653 (D. Kan.1996)).
Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992).
St. Paul Reins. Co. v. Commercial Fin. Corp., 198 F.R.D. 508, 511 (N.D. Iowa 2000).
Fed. R. Civ. P. 26(b)(5), advisory committee notes to 1993 amendment.
RightCHOICE Managed Care, Inc. v. Hosp. Partners, Inc., 489 F. Supp. 3d 907, 914 (W.D. Mo. 2020) (quoting United States v. Philip Morris Inc., 347 F.3d 951, 954 (D.C. Cir. 2003)).
Iowa Network Servs., Inc. v. Sprint Commc'ns Co., No. 4:10-cv-00102-JEG-RAW, 2011 WL 13151672, at *2 (S.D. Iowa Feb. 15, 2011).
Union Cnty., Iowa v. Piper Jaffray & Co., 525 F.3d 643, 646 (8th Cir. 2008) (citing Fed. R. Evid. 501)).
Iowa Network Servs., 2011 WL 13151672, at *2 (quoting Upjohn Co. v. United States, 449 U.S. 383, 390 (1981)).
State v. Tensley, 249 N.W.2d 659, 661 (Iowa 1977).
Keefe v. Bernard, 774 N.W.2d 663, 672 & n.9 (Iowa 2009) (citations omitted) (holding that memorandum written by hospital's attorney on his investigation into hospital's liability for medical malpractice that summarized attorney's conversation with a doctor/employee of the hospital who witnessed the medical malpractice at issue was not privileged, as it reflected the employee's “observations as a witness” rather than the employee's requests for legal advice).