In EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. M1 5100 CORP., d/b/a JUMBO SUPERMARKET, INC., No. 9:19-cv-81320-WPD (S.D. Fla. 2020), the District Court granted, in part, Plaintiff’s motion to compel after finding that Defendant’s self-collection of ESI was inadequate.
In this case, Plaintiff, the EEOC, filed it’s complaint under the Age Discrimination in Employment Act and alleged that Defendant discriminated against a cook manager employed by Defendant when it reduced her pay and fired her because of age. Among the various relief sought by Plaintiff’s motion to compel, Plaintiff sought an opportunity to inspect Defendant’s ESI since, by Defendant’s counsel’s own admission, the Defendant engaged in self-collection of responsive documents without the oversight of counsel.
Addressing the self-collection aspect of the motion, the Court stated that the “issue of ‘self-collection’ of discovery documents, and especially of ESI, by Defendant in this case, without adequate knowledge, supervision, or participation by counsel, greatly troubles and concerns the Court.” Despite Defendant’s counsel signing Defendant’s original discovery responses, Defendant’s counsel represented that he did not supervise his client’s ESI collection and was not aware of all the specific efforts made to identify and produce responsive discovery.
In its analysis, the Court cited to, among others, Federal Rule of Civil Procedure 26(g)(1) which states in relevant part that:
“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.”
Based upon its review of FRCP 26(g)(1) and other standards including The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, the Court stated that “in this case, it appears that Defendant’s counsel left it to the client and the client’s employees to determine the appropriate custodians, the necessary search terms, the relevant ESI sources, and what documents should be collected and produced. When combined with Plaintiff’s assertion that only 22 pages of documents have been produced by Defendant in this complicated age discrimination case, the Court seriously questions the efficacy of Defendant’s search, collection and document production. The Court will not permit an inadequate discovery search, collection and production of discovery, especially ESI, by any party in this case.”
The Court further stated that “Defendant’s counsel seemingly failed to properly supervise his client’s ESI collection process, but then he signed off on the completeness and correctness of his client’s discovery responses. An attorney’s signature on a discovery response is not a mere formality; rather, it is a representation to the Court that the discovery is complete and correct at the time it is made. An attorney cannot properly make this representation without having some participatory or supervisory role in the search, collection, and production of discovery by a client or interested person, or at least having sufficient knowledge of the efficacy of the process utilized by the client.”
According, while the Court denied the request to inspect Defendant’s ESI on the grounds that the Court did not suspect bad faith or discovery misconduct, the Court gave Defendant one last chance to comply with its discovery obligations and ordered the parties to confer as to the relevant ESI sources, custodians, search terms, and a proposed ESI protocol. The Court also suggested that Defendant consider retaining an ESI vendor to assist with the process if Defendant deemed it necessary.