Plaintiff ESI Requests Initiate a “Depth of Discovery” Inquiry Regarding Custodians In Discrimination Case

27 Sep 2013

Even when parties agree that computer and email searches are relevant and necessary in civil litigation, the potential for disputes is only beginning as demonstrated in the ongoing case Rex Brown v. West Corporation, No. 8:11CV284 (D.Neb. August 16, 2013).

In this case, the plaintiff is a former employee of defendant and alleged a claim of racially hostile work environment and wrongful retaliation. After plaintiff electronic discovery requests were issued, the defendant objected to ESI requests of 26 custodians and lists of 36 search terms. Defendant argued plaintiff failed to serve a reasonable and legitimate discovery request for ESI.

The court began its ruling by stating that the defendant has a general obligation to produce relevant unprivileged ESI, but then the court culled the requests. Regarding 26 requested custodians, the court reviewed the facts of the case. Four of the 26 were no longer employed at the firm, and defendant averred these custodians’ computers were cleaned and repurposed with no ESI available. The court found plaintiff failed to provide factual support or argument regarding additional ESI for these four custodians.

Of the remaining 22 custodians, the court held that plaintiff’s requests were overbroad and did not constitute “pointed discovery.”  Twenty of these custodians, who were mostly other employees of defendant, only had remote connections to the case that did not justify searching all the computers at such a considerable expense. The remaining two custodians were the former supervisors of the plaintiff. In contrast to the other 22, the plaintiff met his burden of demonstrating that his immediate supervisor and that person’s supervisor were aware of the ongoing racial harassment and unfair treatment. However, one of the two supervisors’ computers had been searched and it was averred all responsive data was produced, so the court held no additional searches were necessary for one of the two. For the immediate supervisor, the court agreed that supplemental responses were necessary, and the court went on to review which additional search terms were relevant.

As for the number of search terms, plaintiff had a few lists; one list was 24 “racial terms.” The court found that the racial terms were relevant and ordered defendant to use them in searching the immediate supervisor’s ESI. Finally, the court culled the search term lists slightly, but allowed for supplemental search terms regarding names of other employees and accounts for the immediate supervisor’s computer and ESI.

ILS – Plaintiff eDiscovery Experts