Court Disagrees With Defendant’s Contention That It Had No Obligation To Produce ESI Without Previously Agreed Search Terms

19 Apr 2017

provide esi without search termsIn Bird v. Wells Fargo Bank, Case No. 16-1130 (E.D. Cali., Mar. 31, 2017), after Plaintiff was fired from her job in May 2014, she sued her former employer, Wells Fargo Bank, for gender and age discrimination, and breach of employment contract . Defendant responded that Plaintiff was fired because she failed to follow Wells Fargo’s information security guidelines, which it alleged caused private and confidential business information to be stolen.

At the initial scheduling conference, the parties submitted a joint FRCP 26(f) report that stated that they did not anticipate that the case would “involve significant electronic discovery issues”.  However, both parties agreed to preserve relevant ESI, and they also agreed that they would meet and confer on search terms to the extent that Plaintiff sought discovery of emails.

Discovery negotiations broke down during the case. In a mid-discovery status report, Plaintiff asserted that she still required nine depositions, and that she was also in the process of drafting a meet and confer letter to Defendant regarding the scope of ESI discovery.  Defendant responded that Plaintiff had not yet served any notice of deposition and had not initiated any meet and confer communication. Upon receiving the status report, the Court scheduled an extensive discovery conference for March 1, 2017.  At this discovery conference, the Court ordered the parties to meet and confer regarding the scope of ESI discovery and to discuss appropriate search terms.

Thereafter, Defendant wrote to Plaintiff to confirm that Plaintiff’s deposition would occur after Defendant’s production of documents, but that the inclusion of emails and text messages in the producton were dependent upon Plaintiff supplying Defendant with search terms.  Defendant later informed Plaintiff that it could not produce the ESI by March 10th, and then again, it could not produce the ESI by March 17th.

When Plaintiff wrote to Defendant complaining of its failures to respond to Plaintiff’s meet and confer requests, Defendant finally replied that it had purged Plaintiff’s emails after her employment termination.  Defendant asserted that it could not produce any of Plaintiff’s source emails, and that it wanted to limit searches for emails to those sent between Plaintiff and her supervisors.  Defendant also contended that it would take six to eight weeks to compile any ESI, and further reserved the right to shift the ESI search/compilation costs to Plaintiff.

The Court found that both parties were behaving obstinately, but it found Defendant’s actions particularly troublesome.  The Court declared that Wells Fargo had taken a “legally unsupportable position” that it had no obligation to produce ESI without search terms being previously agreed upon.  The Court also found that Defendant’s approach to the discovery process (withholding of information about the deletion of Plaintiff’s emails until after the first discovery deadline, attempting to limit the email searching, threatening to shift costs to Plaintiff for ESI compilation,  and causing discovery to stall by insisting on agreed upon search terms) exhibited unprofessional conduct by counsel for Defendant, and a failure to engage in good faith meet and confer efforts.

Based upon these findings, the Court issued extensive and specific discovery orders with regard to Defendant Wells Fargo:  (1)  production of a variety of documents related to Plaintiff’s employment;  (2) implementation of a comprehensive discovery plan including disclosure of  the scope of its ESI search, search terms, and custodians;  (3) production of Defendant’s document retention policies regarding the destruction of employee emails,  and production of a privilege log; (4)  production of ESI in a format that extracts text and preserves metadata; and, (5) upon failure of Defendant’s compliance with any of the Court’s orders, leave for Plaintiff  to file a Motion for Sanctions.

ILS – Plaintiff eDiscovery Experts