Defendant’s “Self-Collection” Efforts Insufficient After Court Found Defendant’s Counsel Failed to Supervise or Advise Defendant’s ESI Search

16 Sep 2022

In EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. M1 5100 CORP., d/b/a JUMBO SUPERMARKET, INC., Civil No. 19-cv-81320-DIMITROULEAS/MATTHEWMAN, before the Court was Plaintiff’s Motion to Compel a Privilege Log, Better Discovery Responses, and Fees (“Motion”).

Plaintiff filed its Complaint under the Age Discrimination in Employment Act (“ADEA”) of 1967, as amended, 29 U.S.C. § 623(a) (the “ADEA”). Plaintiff alleged that Defendant discriminated against Charging Party Angela Araujo Guerrero (a cook manager) when it reduced her pay and fired her because of her age in violation of Section 4(a) of ADEA.

In its Motion, Plaintiff originally sought responsive documents to several of its requests for production, supplemental responses to several of its interrogatories, the production of privilege log, inspection of Defendant’s electronically stored information (“ESI”), and sanctions against Defendant.

However, Defendant eventually provided Plaintiff with supplemental discovery responses after the Motion was filed, and, as ordered by the Court, the parties also conferred about the discovery disputes. After further conferral, the issue of the privilege log was resolved, along with the disputes regarding Interrogatories.

Thus, Plaintiff only sought better discovery requests for Interrogatory No. 9 and Request for Production No. 18. Plaintiff also sought the opportunity to inspect Defendant’s ESI because, by Defendant’s counsel’s own admission, Defendant “self-collected” responsive documents and information to the discovery request without the oversight of its counsel.

With regard to Plaintiff’s request to inspect Defendant’s ESI, the Court found that Defendant’s counsel signed Defendant’s original discovery responses dated April 20, 2020. However, Defendant stated in its response to the Motion that “[d]uring conferral, Plaintiff requested Defendant’s specific search efforts regarding ESI. At that time, undersigned counsel was not aware of all the specific efforts made.”

Defendant’s counsel also represented at the June 29, 2020, hearing that he did not supervise his client’s ESI collection efforts. Plaintiff’s counsel stated at the hearing that the two individuals who searched for documents and information responsive to Plaintiff’s discovery requests on Defendant’s behalf are self-interested parties and are employees of the Defendant.

The issue of “self-collection” of discovery documents, especially of ESI, by Defendant in this case, without adequate knowledge, supervision, or participation by counsel, troubled and concerned the Court.

Federal Rule of Civil Procedure 26(g)(1) states:

“Every disclosure under Rule 26(a)(1) or (a)(3) and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name… By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry: (A) with respect to a disclosure, it is complete and correct as of the time it is made; and (B) with respect to a discovery request, response, or objection, it is (i) consistent with these rules and warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law, or for establishing new law; (ii) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (iii) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”

Discovery obligations also include the duty to use reasonable efforts to locate and produce ESI responsive to the opposing party’s request per Rule. 26.

The Court found it was clear that an attorney cannot abandon his professional and ethical duties imposed by the applicable rules and case law and permit an interested party or person to “self-collect” discovery without advice or supervision from an attorney. When combined with Plaintiff’s assertion that only 22 documents had been produced by Defendant in this case, the Court questioned the efficacy of Defendant’s search, collection, and document production.

Here, Defendant’s counsel seemingly failed to properly supervise his client’s ESI collection process, but then signed off on the completeness and correctness of his client’s discovery responses. According to the Court, an attorney cannot properly make this representation without having some participatory or supervisory role in the search, collection, or production of discovery by a client, or at least have sufficient knowledge of the efficacy of the process utilized by the client. Such conduct was found to be improper and contrary to the Federal Rule of Civil Procedure.

The Court noted that attorneys have the duty to oversee their client’s collection of information of documents, especially when ESI is involved. Applicable case law informs that “self-collection by a layperson of information on an electronic device is highly problematic and raises a real risk that data could be destroyed or corrupted.” In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-MD-2734, 2017 WL 9249652, at *3 (N.D. Fla. Dec. 7, 2017). In the instant case, the Court found it very clear that Defendant’s employees self-collected ESI in order to respond to Plaintiff’s document requests without sufficient attorney knowledge or participation.

Despite the foregoing, the Court however noted that “[i]nspection of an opposing party’s computer system under Rule 34 and state equivalents is the exception and not the rule for discovery of ESI.” The Sedona Principles at p. 128. Special issues may arise that may warrant an opposing party to inspect their opposing party’s ESI collection and production procedures, but only when all other solutions have been exhausted or the Court suspects bad faith or other discovery misconduct.

In this instance, the Court did not find that Defendant’s counsel acted in bad faith or committed any discovery misconduct. Rather the Court gave Defendant’s counsel the benefit of the doubt that in light of the COVID-19 pandemic, counsel’s involvement in the discovery process with his client was unusually difficult  And, given that discovery cut-off was approximately five months ahead, the Court granted Defendant another chance to comply with its discovery search and did not permit Plaintiff to inspect Defendant’s ESI, withholding ruling on that issue until the parties had the opportunity to further confer.  The Court required the parties to further confer on or before July 9, 2020, to try to agree on relevant ESI sources, custodians, and search terms, as well as on a proposed ESI protocol.