Barnes et al v. The Hershey Company

Filing 205

ORDER ON ESI DISPUTE Re: Dkt. Nos. 161, 194 by Judge Nathanael M. Cousins. (nclc2, COURT STAFF) (Filed on 10/9/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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GREGORY P. BARNES, DAVID C.

Case No. 12-cv-01334 CRB (NC)

M. CHAPMAN, on their own behalf and on

ORDER ON ESI DISPUTE

11 BOLLE, MARY D. WASSON, and JERRY
12 behalf of others similarly situated,

Re: Dkt. Nos. 161, 194

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Plaintiffs,
v.

15 THE HERSHEY COMPANY,
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Defendant.

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Pending before the Court is a joint discovery letter brief concerning Hershey’s

19 Electronically Stored Information (“ESI”) production. Dkt. No. 161. After holding a
20 hearing on this discovery dispute, the Court ordered the parties to continue to meet and
21 confer on the ESI issues and file a joint status update. Dkt. No. 181. The parties filed their
22 updated statement of the dispute on September 26, 2014. Dkt. No. 194. On September 30,
23 2014, the Court issued an order setting forth its tentative ruling and giving Hershey another
24 opportunity to propose narrowed search terms. Dkt. No. 196. Having reviewed Hershey’s
25 status report and proposal, Dkt. Nos. 203-204, the Court now issues this order resolving the
26 ESI dispute.
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The parties executed an ESI agreement in February 2014. See Dkt. No. 128. The ESI

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Case No. 12-cv-01334 CRB (NC)
ORDER ON ESI DISPUTE

1 agreement provides, in relevant part:
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As data sources are identified, the party responding to discovery will run the
initial agreed upon search terms against the reasonably accessible information
collected for a mutually agreed to and selected representative custodian to
gauge the magnitude of the universe of documents retrieved by such search
terms and the attendant burden of reviewing and producing the non-privileged,
reasonably accessible information from the search. To the extent that the
search results in a significant number of documents, a substantial portion of
which are nonresponsive, the Parties will meet and confer to narrow the
search terms. The Parties envision an iterative process whereby counsel and
appropriate information technology personnel together review the results of the
initial searches. If the Parties cannot reach an agreement regarding the
revisions to the search terms, either party may present the dispute to the Court
for resolution.
Id. § 1(b) (emphasis added).
The agreement further provides that “[t]he Parties agree that the fact that a hit for a
document that is captured by the application of any agreed-upon search terms does not
mean that such document is necessarily responsive to any propounded discovery request or
is otherwise relevant to this litigation. Determinations of discoverability, relevance and
privilege shall be made, in the first instance, by the producing party subject to potential
court review.” Id. § 1(c) (emphasis added).
The initial search terms agreed-upon by the parties consisted of: (1) “[t]he names of
the approximately thirty Customer Sales Executives [CSEs] and Category Development
Managers [CDMs] who fell within the stipulated collective action notice in this action,
including the nine plaintiffs; (2) the “[n]ames of those who took over Plaintiffs’ positions or
responsibilities”; (3) the “[n]ames of other CSEs and CDMs involuntarily severed who were
40 years old or older when involuntarily severed”; and (4) additional non-name terms. Id.
§ 4(d)(2).
While discovery was still bifurcated, the Court resolved a previous dispute about
Hershey’s ESI production by ordering Hershey to search by linking name terms with nonname terms and produce all “hits” that are responsive to plaintiffs’ requests for production.
Dkt. No. 139. This resulted in Hershey’s review of approximately 86,000 documents and
production of approximately 2,200 documents as responsive. See Dkt. No. 161 at 2-3.

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Case No. 12-cv-01334 CRB (NC)
ORDER ON ESI DISPUTE

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1 District Court Judge Charles R. Breyer later lifted the bifurcation of discovery, ordered the
2 parties “to proceed with discovery on all issues,” and vacated the undersigned’s order “to
3 the extent the Order limits discovery to the issue of waiver.” Dkt. No. 148.
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Plaintiffs now seek the following relief:

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(1) to compel Hershey to “produce the approximately 85,000 documents which were

6 ‘hits’ based on the Court’s prior order permitting Hershey’s request of linkage of name
7 search terms to substantive search terms” because they “are doubtless responsive to
8 Plaintiffs’ pending discovery requests”;
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(2) in lieu of searching the nine plaintiffs’ custodian files, to compel Hershey to

10 “produce all emails sent to or from the Plaintiffs from twelve months prior to the Plaintiffs’
11 terminations to the date of their terminations”; and
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(3) to compel Hershey to search the following unlinked search terms within the 28

13 custodians (which remain after the nine plaintiffs are removed as search custodians based
14 on part 2): (1) the names of the nine Plaintiffs; (2) the names of non-opt-ins; (3)
15 “headcount” and/or “head count”; (4) tenure; and (5) calibrat*.
16 Dkt. No. 194 at 1-2.
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With respect to part 2 of the requested relief, Hershey responds that it “offered to

18 compromise with Plaintiffs by providing these documents as part of a global compromise
19 regarding ESI issues.” Id. at 4. The Court grants the relief requested in part 2.
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As to part 1, Hershey contends that, based on its review, “over 91 percent” of the

21 approximately 85,000 documents “are not responsive to any of Plaintiffs’ requests,
22 regardless of the bifurcation order.” Id. Hershey further states that it is “in the process of
23 returning to the 85,000 hits to produce documents responsive to Plaintiffs’ new requests for
24 production.” However, neither the parties’ ESI agreement nor the discovery rules require
25 Hershey to produce documents that are not responsive to any of plaintiffs’ discovery
26 requests. If plaintiffs contend that Hershey has withheld responsive documents, they have
27 not established a basis for such a contention. Accordingly, the Court orders Hershey to
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Case No. 12-cv-01334 CRB (NC)
ORDER ON ESI DISPUTE

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1 produce all documents from the approximately 85,000 “hits” that are responsive to any of
2 plaintiffs’ requests, considering that discovery is no longer bifurcated. Hershey is not
3 required to produce the documents just because they are “hits” without regard to
4 responsiveness.
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As to part 3, the Court’s prior order directing Hershey to search by linking names and

6 non-name terms was issued in consideration of the limited scope of discovery at the time.
7 See Dkt. No. 139. Discovery now proceeds on all issues. Recognizing that, Hershey has
8 “indicated its willingness to produce additional ESI, subject to an agreement between the
9 parties (or an order by the Court) establishing the parameters of such a production.” Dkt.
10 No. 161 at 5. Hershey states that “Hershey’s review of Plaintiffs’ original search terms,
11 which included all of the Plaintiffs’ and non-opt-ins names, revealed that nearly all of the
12 ‘hits’ were non-responsive.” Dkt. No. 194 at 4. Hershey contends that the ESI agreement
13 “spells out a solution for a situation where a set of search terms return too many non14 responsive documents,” which is for the parties to meet and confer to narrow the search
15 terms. Id. at 5. However, despite ample opportunity to meet and confer, the parties have
16 not reached an agreement about narrowing the terms.
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In response to the Court’s tentative ruling, Hershey filed a status report, asserting that

18 the “hits” generated by plaintiffs’ proposed search terms have a very low level of
19 responsiveness (less than one percent), based on Hershey’s review of a random sample of
20 1% of the hits. Dkt. No. 204 at 1-2. Hershey argues that, even without conducting a review
21 for responsiveness, the cost “to process and produce” the documents would be $231,569.30,
22 and that this cost is not justified given the limited benefit of the requested discovery. Id. at
23 2. Hershey’s counter-proposal is to search only by using the substantive terms proposed by
24 plaintiffs (“headcount” and/or “head count,” “tenure,” and “calibrat*”) and not the name
25 terms. Id. at 3.
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The Court is not convinced that “the burden or expense of the proposed discovery

27 outweighs its likely benefit, considering the needs of the case, the amount in controversy,
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Case No. 12-cv-01334 CRB (NC)
ORDER ON ESI DISPUTE

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ies’
ces,
t
at
he
and
ortance
1 the parti resourc the importance of the issues a stake in th action, a the impo
iscovery in resolving th issues.” See Fed. R Civ. P. 26
he
R.
6(b)(2)(C). While Her
rshey
2 of the di
e
”
ber
esponsive d
documents, this is
3 might be correct that the “hits” contain a large numb of nonre
nherent in us
sing search terms. As the party m knowle
most
edgeable with its own
4 a risk in
nts,
ey
b
se
erms that w
would narrow the
w
5 documen Hershe is in the best position to propos a set of te
f
h.
h
ne
ing
ajority of th
he
6 scope of the search Hershey has not don so, insisti instead that the ma
roposed by plaintiffs ar overbroa and shou not be us
re
ad
uld
sed. Furthe
ermore, whi the
ile
7 terms pr
cknowledge that the cost estimated by Hersh “to pro
es
c
hey
ocess and pr
roduce” the
e
8 Court ac
nts
antial, the Court is not convinced that this es
C
t
d
stimate is ba
ased on the most
e
9 documen is substa
t
f
n.
urt
earch the te
erms as prop
posed
10 efficient method of production The Cou orders H ershey to se
0
ntiffs in part 3 of the joint status re
t
eport, Dkt. N 194 at 2. Hershey may revie the
No.
y
ew
11 by plain
1
or
veness and privilege, if it so wishe or produ all “hits to minim its
p
f
es,
uce
s”
mize
12 “hits” fo responsiv
2
H
ive
ents
vember 10, 2014.
13 costs. Hershey must produce all responsi docume by Nov
3

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Fi
inally, in its September 5 discover order, th e Court too under sub
s
r
ry
ok
bmission

the
fs’
t
H
p
s
yment
15 plaintiff request to compel Hershey to produce all documents regarding t employ
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ons
DM
as
r
ily
ted
16 separatio for any CSE or CD who wa age 40 or older and involuntari terminat
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mployment with Hershe from Jan
w
ey
nuary 1, 201 to the pr
12,
resent (Req
quest for
17 from em
7
ion
).
ers
e
18 Producti No. 16) See Dkt. No. 182 at 9-10. The Court orde Hershey to produce all
8
nts
r
t
ed
he
enerated by the
19 documen responsive to this request that are capture within th “hits” ge
9
erms proposed by plain
ntiffs in par 3 of the jo status r
rt
oint
report, Dkt. No. 194 at 2.
.
t
20 search te
0

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An party ma object to this non-d
ny
ay
o
dispositive d
discovery or
rder within 14 days un
n
nder

vil
re
22 Federal Rule of Civ Procedur 72(a).
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T
RDERED.
IT IS SO OR

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Date: Octobe 9, 2014
er

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____
__________
__________
_____
Nath
hanael M. C
Cousins
Unit States M
ted
Magistrate J
Judge

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Case No. 12-cv-0133 CRB (NC
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C)
ORDER ON ESI DISPUTE
R

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