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Lack of Cooperation Leads to Court to Order Scope of Discovery for Defendant: eDiscovery Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

In Bird v. Wells Fargo Bank, No. 16-1130 (E.D. Cali., Mar. 31, 2017), after the parties could not agree on the parameters and scope of discovery, California Magistrate Judge Erica P. Grosjean ordered the defendant to produce several categories of documents related to the plaintiff’s former employment, disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

Case Background

In this case for gender and age discrimination and breach of employment contract filed by a former employee of the defendant after termination (defendant’s claimed grounds for termination was failure to comply with its security policy), the parties initially submitted a joint FRCP 26(f) report the initial scheduling conference that stated that they did not anticipate that the case would “involve significant electronic discovery issues”.  However, discovery negotiations eventually broke down between the parties.  During a March 1, 2017 conference, the Court ordered the parties to meet and confer regarding the scope and terms of ESI discovery and requested a status report on March 15.

On the afternoon of that conference, the defendant wrote to the plaintiff to, among other things, demand a list of search terms from the plaintiff by close of business on March 3. The defendant concluded the correspondence by stating “If you breach the agreement and fail to provide the list by COB on Friday then our agreement regarding the documents discussed above is null and void ab initio and we will once against take these issues to Judge Grosjean and will move to compel Plaintiff’s deposition and seek sanction.”  Meanwhile, the plaintiff sent a meet and confer letter to the defendant on March 1 and another letter the following day, but did not receive a prompt response.

The day before the joint statement on meet and confer was due with the Court, plaintiff’s counsel wrote to defense counsel explaining that the defendant had not responded to the plaintiff’s meet and confer efforts.  The defendant finally provided its “position with regard to ESI” later that day at 4:33 pm, indicating (among other things) that it had purged the plaintiff’s emails after she was terminated, that it would take six to eight weeks to pull any requested ESI (which would still then have to be reviewed for privilege, privacy and confidentiality) and further reserved the right to shift all fees and costs incurred in the collection, review, and production of ESI to the plaintiff.

Judge’s Ruling

While acknowledging that both parties “shoulder some of the blame for this breakdown”, Judge Grosjean stated that “the Court is particularly troubled by Defendant Wells Fargo’s approach to discovery in this case. Defendant has taken the legally unsupportable position that it is not under any obligation to provide electronic discovery unless and until there is full agreement on search terms. This position has led to the predictable conclusion that discovery is completely stalled and Defendant is not close to meeting its discovery obligations. Defendant also withheld information about Plaintiff’s inbox until after the initial discovery cut-off. It both fails to provide any date certain for production and will not extend the schedule a reasonable amount of time. It continues to threaten to have Plaintiff pay its costs without any legal justification. The Court also takes issue with the tone of Defendant’s communication, such as telling Plaintiff that Defendant’s agreement to produce certain documents will be ‘null and void ab initio’ and that Defendant will request sanctions if Plaintiff did not provide certain search terms by the deadline imposed by Defendant…Such dialogue is not professional and not a good faith attempt to meet and confer.”

As a result, Judge Grosjean stated that “the Court will issue the following order under its authority in Rule 16 regarding the scope of discovery” and ordered the defendant to produce several documents related to the plaintiff’s employment, including her complete personnel file, documents regarding her termination and any disciplines or reprimands she received, documents regarding her compensation and security policy documentation (including a three year report of all employees who failed to comply with the defendant’s security policy, including age, gender and whether the employee was terminated).  Judge Grosjean also ordered the defendant to disclose its discovery plan, search terms and custodians, produce its document retention policies regarding the destruction of employee emails and produce an initial privilege log.

So, what do you think?  Should the judge have dictated the discovery parameters for the defendant or should she have worked with the parties some more to resolve the conflicts?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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