Equal Employment Opportunity Commission v. Original Honeybaked Ham Company of Georgia, Inc., The
Filing
334
ORDER re: #276 Motion for Discovery Dispute Resolution filed by EEOC. The Court heard oral arguments on this motion on 2/12/2013, at which the Court determined to grant in part and deny in part the EEOC's motion. This Order sets forth in writing the Court's decision. By Magistrate Judge Michael E. Hegarty on 2/27/2013. (mehcd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-02560-MSK-MEH
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
and
WENDY J. CABRERA,
Plaintiff-Intervenor,
v.
THE ORIGINAL HONEYBAKED HAM COMPANY OF GEORGIA, INC.,
Defendant.
______________________________________________________________________________
ORDER RE: EEOC’S MOTION FOR RESOLUTION OF DISCOVERY DISPUTE
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Plaintiff EEOC has filed a Motion for Resolution of Discovery Dispute and Proposed
Protocol and Search Term List [docket #276]. The motion is referred to this Court for disposition.
(Docket #277.) The matters are fully briefed and the Court heard oral arguments on February 12,
2013, at which the Court determined to grant in part and deny in part the EEOC’s motion. This
Order sets forth in writing the Court’s decision.
I.
Background
Plaintiff Equal Employment Opportunity Commission (EEOC) brings claims of
discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, alleging
Defendant subjected a class of female employees to sexual harassment, and retaliated against such
employees when they complained about the harassment. Docket #6 at 1. On November 20, 2011,
this Court granted Wendy Cabrera leave to intervene in this action. Docket #9. Defendant
responded to both the Amended Complaint and the Intervenor Complaint by filing Answers on
January 6, 2012. Discovery commenced with the Scheduling Order issued December 20, 2011 and
concluded on November 31, 2012.
In the present Motion for Resolution of Discovery Dispute, the EEOC and Defendant could
not agree on a protocol or search terms for the search of electronically stored information including
social networking data, text messages, blog postings, and email accounts as ordered by the Court
on November 7, 2012. [Docket #241.] The EEOC recommended use of 57 search terms,1 while
Defendant recommended approximately 475 terms. Based on the lowest bid it obtained, the EEOC
also requested that the Court appoint Jeremy Shaper of BlueStar Case Solutions, Inc. as the Special
Master in this case.
II.
Analysis
At the oral argument on February 12, 2013, I entertained the parties’ respective positions
on each of the search terms proposed by Defendant (having accepted all of the EEOC’s lessinclusive search terms, all of which had been stipulated by the Defendant). I am now prepared to
enter an order reflecting my rulings on appropriate search terms and related issues.
I adopt the EEOC’s proposed search terms and protocol (with certain additions proposed
by Defendant) and amend my Order from November 7, 2012 as follows: First, the EEOC will bear
the initial costs of the Special Master and discovery of the aggrieved individuals’ ESI, and will seek
reimbursement through this Court from the Defendant. At the appropriate time, I will entertain a
motion and argument on the proper apportionment of such costs between the parties in the case.
1
Since that time, the District Court ruled on Defendant’s Motion to Dismiss [docket #42] and,
thus, searches relating to Long Armstrong and any aggrieved individuals who alleged sexual
harassment only against him have been eliminated by agreement of the parties.
Although I initially ordered that such costs be shared equally, I am prepared to consider a different
apportionment. Second, appended to this Order is my decision concerning what additional search
terms will be included.
The Special Master is to bates stamp all of the results of his search. The EEOC will then
have the opportunity to conduct a privilege review prior to the Court’s in camera inspection of the
records. The Special Master shall provide the EEOC with the results of its search, and the EEOC
shall create a privilege log to provide to the Court and Defendant describing any records that it
withholds due to privilege prior to the Court’s relevance review. These are the only records the
EEOC may withhold. At this time, the EEOC shall also provide the Court with a list of any of its
other objections to the discovery.
Dated and entered at Denver, Colorado, this 27th day of February, 2013.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
APPENDIX
SEARCH TERMS AND PROTOCOL FOR THE SPECIAL MASTER CIVIL
ACTION NO.: 11-CV-02560-MSK-MEH
A.
Relevant Time Period: For all of the following sections (B through F), the period of search
for electronic information will be limited to January 1, 2009 through the present.
B.
Social Networking Media
I. The Special Master shall download and preserve all content from any social networking
website owned by an aggrieved individual, including wall posts, pictures, and videos, with
the exception of direct messaging, and produce this content to the Court for an in camera
review for relevance.
II. All direct messaging or similar private one-on-one electronic communications sent through
any social networking media shall be treated the same as any other email from a private
account, and shall be subject to the search terms and restrictions provided in sub-section C.
III. “Tagged” photos and similar such ventures are not subject to discovery.
C.
Private Email Accounts
I. The aggrieved individual is required to disclose to the Special Master her own personal
email accounts, usernames, and passwords. She is not required to disclose any email
accounts provided to her by any employer.
II. The Special Master shall download and preserve all email communications between the
following recipients and produce them to the Court for an in camera review for relevance:
1.
2.
3.
4.
5.
6.
7.
8.
9.
All electronic communications exchanged between and among the 13 remaining
aggrieved individuals.
All electronic communications exchanged between the aggrieved individual and James
(“Jimmy”) Jackman.
All electronic communications exchanged between the aggrieved individual and Donna
Wagner-Rago.
All electronic communications exchanged between the aggrieved individual and Tim
Franklin.
All electronic communications exchanged between the aggrieved individual with an
HBH corporate email account (i.e., @hbham.com).
All electronic communications exchanged between the aggrieved individual with Michal
(“Mike”) Costello.
All electronic communications exchanged between the aggrieved individual and Ami
Huff.
All electronic communications exchanged between the aggrieved individual with Molly
Kesmodel.
All electronic communications exchanged between the aggrieved individual with Cindy
Sutton.
III. All email communications with individuals other than those listed in Paragraph C.II., will
be searched as provided by Part F of this Protocol.
D.
Web Blogs and Other Forums for engaging in communications
I. If an aggrieved individual owns and hosts her own web-blog, she shall disclose the username
and password to the Special Master. The Special Master shall download and preserve all
public content, including posts, pictures, and videos, and produce this content to the Court
for an in camera review for relevance.
II. Additionally, the aggrieved individual shall identify to the Special Master any web blog or
public internet forum where the aggrieved individual posted during the relevant time period,
to exclude banking, commercial or shopping, political, and internet date or dating forums.
E.
Cell Phones:
I. The aggrieved individual is required to provide to the Special Master with all cell phones
in her custody or control, which she personally owned or had in her possession during the
relevant time period specified in Part A, with the exception of phones provided to her by
her employer.
II. The Special Master shall download and preserve all email communications between the
following recipients and produce them to the Court for an in camera review for relevance:
1. All electronic communications exchanged between and among the 13 remaining
aggrieved individuals.
2. All electronic communications exchanged between the aggrieved individual and James
(“Jimmy”) Jackman.
3. All electronic communications exchanged between the aggrieved individual and Donna
Wagner-Rago.
4. All electronic communications exchanged between the aggrieved individual and Tim
Franklin.
5. All electronic communications exchanged between the aggrieved individual with an
HBH corporate email account (i.e., @hbham.com).
6. All electronic communications exchanged between the aggrieved individual with Michal
(“Mike”) Costello.
7. All electronic communications exchanged between the aggrieved individual and Ami
Huff.
8. All electronic communications exchanged between the aggrieved individual with Molly
Kesmodel.
9. All electronic communications exchanged between the aggrieved individual with Cindy
Sutton.
III. All email communications with individuals other than those listed in Paragraph E.II., will
be searched as provided by Part F of this Protocol.
F.
Search Terms:
I.
The search term list below applies only to those electronic communications that are not
otherwise addressed above. Specifically, electronic communications between the aggrieved
individuals and key actors as identified in Paragraphs C.II and E.II are subject to full
disclosure to the Court for in camera review, as is public social networking media captured
under Part B.I, blogs and similar forums owned and controlled by an aggrieved individual
as captured under Part D.I, and relevant blog public content captured under Part D.II.
II.
All electronic communications captured under Parts C or E, between an aggrieved individual
and individuals other than those identified in Paragraphs C.II and E.II, will be searched for
the following terms. Any communication containing one or more of the following terms in
the subject line or text of the message will be provided to the court for an in camera review
for relevance unless designated as privileged:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
Jimmy
James
Jackman
Donna
Wagner
Wagner-Rago
Rago
HoneyBaked
HBH
ham
sexual harassment
sexually harassed
(money OR $) AND lawsuit
lawsuit
sex* AND (Jimmy OR Jackman)
touch* AND (Jimmy OR Jackman)
rub* AND (Jimmy OR Jackman)
sex* AND (HBH OR HoneyBaked)
harass* AND (HBH OR HoneyBaked)
harass* AND (Jimmy OR Jackman)
harass* AND (Donna OR Wagner-Rago)
wet-willie
fired
retaliat*
Costello
(Mike OR Michael) AND (H.R. OR corporate*)
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
47.
48.
H.R.
Human Resources
Franklin
Huff
Suhail-Lewis
Cabrera (to exclude Ms. Cabrera’s own electronic communications)
Gunther (to exclude Ms. Gunther’s own electronic communications)
Gountanis (to exclude Ms. Gountanis’ own electronic communications)
Thomas (to exclude Ms. Thomas’ own electronic communications)
Haider (to exclude Ms. Haider’s own electronic communications)
Ramirez (to exclude Ms. Ramirez’s own electronic communications)
Fye (to exclude Ms. Haider’s own electronic communications)
Sakalyte (to exclude Ms. Sakalyte’s own electronic communications)
Shoemaker (to exclude Ms. Shoemaker’s own electronic communications)
Sbravati (to exclude Ms. Sbravati’s own electronic communications)
Mondragon (to exclude Ms. S. Mondragon’s own electronic communications)
Witchard (to exclude Ms. Witchard’s own electronic communications)
Jones (to exclude Ms. Jones’ own communications)
interview
application
applied
quit
In addition, the Court will include from Defendant’s proposed search terms the following
additional words:
49.
50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
$ W/5 (case* OR settl* OR pay OR paid OR money)
accus* W/2 they
affect*
agreement W/1 settl*
annoy*
anxiety
attorney*
boob*
boss*
breast
cash W/5 (make OR settle OR get OR paid OR pay)
chest
claim*
class W/1 action
complain*
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.
100.
101.
102.
103.
104.
convic*
court*
crisis
cunt
cuss*
customer
damages
demot*
depress*
discharge
disciplin*
discrim*
distress* W/1 emotion
employ*
erection
evidence
fun*
gorgeous
grabbed
harass*
hard W/10 butt!
hard W/1 on
host* W/3 environ*
honey-baked OR honey baked
humiliat*
inapprop*
injur*
interview*
JJ
job*
justice
legal
manager
occupation*
on video
penis
policy
promot*
recover*
he rub*
settle*
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
sexual
shock*
termin*
threesome
transfer* (to apply only to Ms. Jones’s communications)
unemployed (to apply only to the electronic communications of Mses. Cabrera,
Gunther, Sakalyte, Shoemaker, and Sbravati)
victim
write up OR wrote up OR written up
written OR final warning
wet W/10 (willie OR willy)
wet W/3 gave
witness*
won W/5 case
womanizer
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?