Munguia-Brown et al v. Equity Residential et al

Filing 60

Discovery Order. Signed by Judge Maria-Elena James on 7/6/2017. (mejlc3, COURT STAFF) (Filed on 7/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAVANNI MUNGUIA-BROWN, et al.,

Case No. 16-cv-01225-JSW (MEJ)

Plaintiffs,
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DISCOVERY ORDER

v.

Re: Dkt. Nos. 58, 59

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EQUITY RESIDENTIAL, et al.,
Defendants.

United States District Court
Northern District of California

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The undersigned earlier resolved a number of discovery disputes the parties presented in

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five joint letter briefs, and ordered Defendants to provide additional information regarding their

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search for custodians and responsive emails. See Order, Dkt. No. 58. In response, Defendants

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submitted the declaration of James D. Fiffer. Fiffer Decl., Dkt. No. 59. Mr. Fiffer explains the

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Company (as the Court defined that term in its prior Order) switched to its current email system

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around March 2012, more than two years prior to the September 2014 filing of Plaintiff’s lawsuit

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in Alameda Superior Court; transferred emails in employee inboxes to the new system, Google

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Gmail-for-Business; and additionally allowed employees to transfer emails saved in personal

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folders to the new system. Id. ¶¶ 6-7. Emails in personal folders that were not subject to litigation

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holds and that were not transferred to the new system by employees were purged and are

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irretrievable. Id. ¶ 7. Former employees’ emails were not transferred to the new email system,

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except those emails responsive to existing litigation holds. Id. ¶ 8. In March 2012, there were no

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pending lawsuits related to late fees, and thus no litigation holds covering documents relating to

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late fees. Id.

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Mr. Fiffer identifies eleven individuals who, to the best of his knowledge, were involved in
the decision to adopt the late fee policy in 2008; only six of the eleven individuals he identifies

were still employed by the Company when it adopted the new email system in March 2012: Mr.

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Fiffer, Denise Beihoffer, Bruce Lavine, David Santee, Fred Tuomi, and Chris Jenkins. Id. ¶ 10.

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He also described the searches Defendants conducted to discover responsive documents.

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Defendants searched hard copy folders kept by Fiffer and Beihoffer; searched Fiffer’s email

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account using the search terms “PwC”, “Price Waterhouse” and “late fee”; searched folders within

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Beihoffer’s email account that might contain emails related to late fees using the same keywords;

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and searched “emails” for Jenkins and Santee for the time frame prior to December 31, 2008 using

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the single search term “late fee.” Id. ¶¶ 11-14. Defendants do not explain what “emails” were

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searched for Jenkins and Santee (i.e., whether their entire email accounts were searched, or only

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folders within their email accounts, whether any archived emails were searched, etc.). Although

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United States District Court
Northern District of California

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Fiffer declares counsel helped Beihoffer review the folder labels in her account for relevance, he

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does not provide details about the search process: whether the custodians, IT, and/or counsel

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conducted these searches; or whether the custodians and/or counsel reviewed the emails for

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relevance.

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Fiffer declares Lavine and Tuomi were not employees of or affiliated with the Company

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when it switched to the new email platform in March 2012 (Fiffer Decl. ¶ 15), but the chart Fiffer

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includes shows Lavine worked at the Company from November 1995 until September 2013, and

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Tuomi worked there from January 1994 through June 2013 (id. ¶ 10).

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For those employees who were employed by the Company in March 2012, the Court finds

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Defendants’ email searches were not sufficient. Using the single search term “late fee” likely

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would exclude many directly relevant documents. For example, if Fiffer and the other individuals

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listed did not exclusively use the term “late fee” (as opposed to “fees” or “five percent fee” or

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“liquidated damages”) in their communications, simply searching for “late fee” would omit

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relevant emails. Importantly, it also is not clear whether the search for “late fee” would exclude

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documents referring to “late fees.” The Court agrees Defendants must do more with respect to at

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least Fiffer, Beihoffer, Jenkins, and Santee. The Court also is not convinced that December 31,

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2008 is an appropriate cut-off date for Jenkins and Santee, absent evidence they were not involved

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in discussions about the recently-enacted late fee policy after that date. And as explained above,
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there appears to be a discrepancy or some confusion about the termination dates for Lavine and

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Tuomi. Furthermore, the fact no litigation hold existed in March 2012 that was specifically

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related to litigation about late fees does not demonstrate that email regarding the late fee policy

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enacted in 2008 would not have been captured and preserved as part of a hold issued in unrelated

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litigation.

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The Court accordingly orders the parties to meet and confer in person within the next ten

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days and to reach agreement regarding the following issues: whether Lavine and Tuomi were

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employed by the Company in March 2012 and whether any of their emails were transferred to the

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new system and should be searched; date ranges for the search; the identities of persons searching
and/or reviewing emails for relevance; additional search terms; and steps Defendants took to

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United States District Court
Northern District of California

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ascertain whether documents preserved as part of unrelated litigation holds might also contain

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emails that are relevant to the claims and defenses asserted in this action. The parties’ discussions

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must be guided by the proportionality concerns this Court has repeatedly invoked. See also Fed.

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R. Civ. P. 26(b)(1) (“Parties may obtain discovery regarding any nonprivileged matter that is . . .

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proportional to the needs of the case[.]”). If Gmail-for-Business does not support certain types of

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searches (e.g., wildcards), Defendants should offer practical alternatives to obtain the requested

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discovery. If the parties cannot reach agreement, they shall file a joint letter brief listing their

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alternative proposals and explaining why their proposals are proportional to the needs of the case.

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IT IS SO ORDERED.

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Dated: July 6, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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