Saliga v. Chemtura Corp
ORDER: The plaintiff's motion 98 is granted in part and denied in part. See attached ruling. Signed by Judge Donna F. Martinez on 11/25/13. (Constantine, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RULING ON PLAINTIFF'S MOTION
The plaintiff brings this action against her former employer
alleging discrimination based on her race, gender and religion.
Pending before the court is the plaintiff's "motion to compel ESI
discovery."1 (Doc. #98.)
"The Federal Rules of Civil Procedure, case law, and the
information ('ESI') should be a party-driven process."
Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland
Sec., 255 F.R.D. 350, 358 (S.D.N.Y. 2008).
should begin early in the case.
Discussions about ESI
Rule 26(f) requires that the
parties meet and confer to develop a discovery plan that discusses
"any issues about disclosure or discovery of [ESI], including the
form or forms in which it should be produced." Fed. R. Civ. P.
"Of course, the best solution in the entire area of
electronic discovery is cooperation among counsel."
On September 3, 2013, the plaintiff filed a motion to compel
ESI discovery (doc. #89) to which defendant filed a memorandum in
opposition (doc. #94).
The plaintiff subsequently withdrew the
motion. (Doc. #97.) This motion followed.
Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256
production of electronically stored information 'allows the parties
to save money, maintain greater control over the dispersal of
information, maintain goodwill with courts, and generally get to
the litigation's merits at the earliest practicable time.' The Case
for Cooperation, 10 Sedona Conf. J. 339, 339 (2009)." Trusz v. UBS
Realty Investors LLC, No. 3:09CV268(JBA)(JGM), 2010 WL 3583064, at
*4 (D. Conn. Sept. 7, 2010).
"[C]ourts have emphasized the need
for the parties to confer and reach agreements regarding the form
of electronic document production before seeking to involve the
Aguilar, 255 F.R.D. at 358.
The plaintiff's motion was only recently filed.
almost a year the parties have been unable to agree on how the
defendant should search and produce its emails.
During a status
(Chatigny, J.) expressed dissatisfaction with the parties' lack of
(Doc. #105 at 15.)
Notwithstanding, little more has
happened to advance a compromise resolution on ESI and the parties
remain at an impasse.2
On this record, ordering the parties to
The plaintiff's discovery requests seeking ESI were served
more than a year ago.
The defendant made repeated attempts to
produce certain documents but the parties were unable to reach an
The deadline for the completion of discovery is
December 29, 2013.
meet and confer again would be futile.
Form of Production
The court first considers the form in which the emails will be
Under Fed. R. Civ. P. 34, a requesting party "may
information is to be produced."
Fed. R. Civ. P. 34(b)(1)(C).
plaintiff requests that the emails be produced in native format,
information produced in the form in which the file was created (or
'native format') will contain application metadata3 . . . . An
electronic document or file produced in native format may also be
accompanied by system metadata, such as the date the file was
created or the identity of the computer on which it was created."
Production, The Sedona Principles: Best Practices Recommendations
& Principles for Addressing Electronic Document production, p. 62
(Sedona Conference Working Group Series 2007).
The defendant objects.
The defendant does not argue that
"Metadata, frequently referred to as data about data, is
electronically-stored evidence that describes the history,
tracking, or management of an electronic document. It includes the
hidden text, formatting codes, formulae, and other information
associated with an electronic document." Aguilar, 255 F.R.D. at 354
(internal quotation marks omitted).
"Metadata for email will
include the email address and/or names of the senders and
recipients, the subject line, the date and time, and information
regarding the email's Internet journey if it originated outside the
organization." Anne Kershaw & Joe Howie, Judges' Guide to CostEffective E-Discovery at 2 (eDiscovery Institute 2010).
practice is to produce ESI in searchable PDF or TIFF4 and there is
"no basis or need" to produce the emails in native format.
#109 at 8.)
The defendant points out that documents produced in
native format cannot be Bates stamped or marked confidential and
that working with the documents (during deposition, motion practice
and trial) in native format will be more difficult than other
choice." Effective Use of Courtroom Technology: A Judge's Guide to
Pretrial and Trial 73 (Federal Judicial Center 2001).
however, the court is not persuaded by the defendant's objection.
The rule says that the requesting party may specify the "form . .
. in which [ESI] is to be produced," Fed. R. Civ. P. 34(b)(1)(C),
and the defendant has not shown compelling reasons why it cannot
produce the information in the format requested by the plaintiff.
Accordingly, the court will grant the plaintiff's request for
See, e.g., In re Porsche Cars North America, Inc.
Plastic Coolant Tubes Products Liability Litigation, 279 F.R.D.
447, 450 (S.D. Ohio 2012) (court granted plaintiffs' request for
PDF and TIFF are static image formats that create a mirror
image of the electronic document. The Sedona Conference Glossary:
E-Discovery & Digital Information Management 35 (3rd ed. Sept
production would be unduly burdensome); Romero v. Allstate Ins.
Co., 271 F.R.D. 96, 107 (E.D. Pa. 2010) ("the Court finds that
Plaintiffs are entitled to have documents produced in native format
with their associated metadata" where defendants do not allege that
they will be financially burdened or prejudicially harmed by the
production of metadata); Camesi v. Univ. of Pittsburgh Med. Ctr.,
No. CIV.A.09–85J, 2010 WL 2104639, at *7 (W.D.Pa. May 24, 2010)
(ordering defendants to produce ESI in its native format "absent a
clear showing of substantial hardship and/or expense"); In re
Netbank, Inc. Secs. Litig., 259 F.R.D. 656, 681–82 (N.D. Ga. 2009)
("Although the Defendants have listed a number of hypothetical
problems with providing documents in native format, they have not
asserted these to be actual problems arising in the present case.
. . . [T]he court is confident that the precision of record
citations can be appropriately dealt with should [plaintiff] desire
to use any of the documents at issue as exhibits or evidence. . .
. The Defendants having given no good reason why they should not
produce [plaintiff's] requested documents in native format, the
Motion to Compel production of ESI information in native format is
Production Requests 8 & 61
The court next considers two particular ESI requests the
plaintiff made in her First Request for Production of Documents.
In production request 8, the plaintiff seeks all emails from
October 2010 to the present written by or received by fourteen
individuals as well as "any other employee who was involved in the
warnings, drafting of performance reviews, drafting of performance
improvement plans and letters of termination."
objects to this request on numerous grounds, including that the
request is overly broad, unduly burdensome and not reasonably
limited in scope.
The defendant argues that the request is not
limited "to areas or topics relevant to this action." According to
the defendant, its "initial search of e-mails to and from the 14
listed employees from October 1, 2010 to November 2012 resulted in
925,396 e-mails, not including attachments."
The defendant also objects that the request is
duplicative of request 61 (discussed below).
(Doc. #99, Ex 5,
Without waiving its
between the plaintiff, her co-workers, her supervisors, and members
of the defendant's human resources department, including all emails
referred to in the complaint.
electronic documents concerning the allegations in the complaint
and the Plaintiff's employment" for the same time period.
request further states that
[t]he following search terms shall be used but the
request is not limited to such terms: Diane Saliga;
Saliga; Jogita Khilnani; Jogita; Khilnani; Denise Mosher;
Mosher; Ayesha Jagtiani; 'God Bless You'; 'Bless you';
Hindu; 'Chi rho'; Cross; Akhilesh Saxena; Mohsen Baccar;
Anthony Longo; Caucasian; Christian; India Audit; Balance
Sheet Review; Fraud Risk Assessment; Critical Spreadsheet
testing; Sue Mullen; Christine Peterson; Allen Downes;
Anuradha; Kirk Erstling; Assunta; Anuradha Arora; Jesus
Candles; Fabiola Miranda.
The defendant objects to this request on the grounds that it is
overly broad, unduly burdensome, and not reasonably calculated to
lead to the discovery of relevant and admissible evidence.
defendant also objects on the grounds that the phrase "search terms
shall be used but the request is not limited to such terms" is
ambiguous and vague. Without waiving its objections, the defendant
produced certain documents.
The parties thereafter attempted to negotiate search terms but
were unable to reach a compromise.
(Doc. #99, Ex. 12.)
result, the parties present the court with competing proposals
about how to search the defendant's email5 communications.6
#99, Ex. 12.)
The court first considers the issue of custodians.
This ruling is confined
submissions appear so limited.
Production requests 8 and 61 are overly broad. To the extent
that the plaintiff moves to compel these particular requests as
written either in this motion or in its earlier filed motion to
compel (doc. #55 at 23-24), the motion is denied.
In fact, the plaintiff's list of custodians is subsumed
within the defendant's larger list.7
In addition to the agreed
upon list of custodians, the defendant has stated that it will
produce the plaintiff's email file in its entirety. (Doc. #99, Ex.
The court turns to search terms.
The court is loathe to
decide the search terms to be used because the parties are far
Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134,
135 (S.D.N.Y. 2009) (observing that the parties' inability to reach
an agreement "left the Court in the uncomfortable position of
having to craft a keyword search methodology").
parties should agree on the search methods, including search terms
or concepts . . . ."
The Sedona Conference Working Group on
Practices Recommendations & Principles for Addressing Electronic
Conference Cooperation Proclamation: Resources for the Judiciary 22
These custodians are:
10. Kirk Erstling
(August 2011) (suggesting as a judicial management strategy
"[d]irect the parties to agree on a reasonable set of 'key words,'
if key word searching is an appropriate methodology. Avoid having
the court be forced to select key words for the parties, as the
court is not in a position to determine whether any given set of
key words will be effective in retrieving relevant information and
filtering out irrelevant information.") But in view of the parties'
inability to resolve this issue, the court must do so.
The plaintiff proposes 37 search terms, which consist of 12
words or phrases with the remainder comprising various versions of
The defendant's counter proposal consists of 11 of the
12 search terms in the plaintiff's list.
agree to the term "India Audit."8
The defendant does not
The defendant also maintains
that including the names of the custodians themselves is cumulative
Finally, the defendant contends that the 11
search terms should be searched within 50 words of "Diane" and
custodians' names as search terms is superfluous; (2) "India Audit"
should be included as a search term and (3) the search terms need
Although the defendant objects to the general search term
"India Audit", it noted that because it was producing the
plaintiff's emails in their entirety, that production would include
any email that the plaintiff had regarding the India Audit. (Pl's
not be combined with terms "Diane" and "Saliga" as the addition of
these terms unduly narrows the search.
Accordingly, the defendant
custodians using the 129 search terms.10
Information regarding Data Collection
insistence that the defendant provide her with highly specific
information regarding the defendant's "data collection process
To that end, the plaintiff dispatched a
letter to defendant in August 2013 containing three pages of
technical questions about the defendant's system configuration,
acquisition methods and data extraction.
(Doc. #99, Ex. 13.)
plaintiff went so far as to instruct the defendant not to produce
any ESI discovery until the plaintiff was satisfied that her
search terms are:
God Bless you
The court refrains from determining a temporal scope of the
emails to be searched as that issue is not briefed.
concerns and questions were resolved.
To the extent that the plaintiff seeks an order that the
defendant respond to her queries in the August 2013 letter, the
request is denied.
If the plaintiff has legitimate concerns
procedures, counsel should discuss them.
However, the plaintiff's
questions may not impede the defendant's production, which must
take place immediately.
In the (hopefully unlikely) event that
counsel are unable to resolve the plaintiff's concerns through
cooperation, the plaintiff may propound specific discovery requests
in accordance with the rules.
D. Conn. L. Civ. 37(a).
McNearney v. Washington Dept. of Corrections, No. C11–5930 RBL/KLS,
2012 WL 3155099, *6 (W.D. Wash. Aug. 2, 2012) (court granted a
motion to compel response to interrogatory which asked for "the
identity of persons who performed the ESI searches" and "the ESI
storage locations that were searched").
For these reasons, the plaintiff's motion to compel ESI
discovery (doc. #98) is granted in part and denied in part.
plaintiff and the defendant both request fees and costs.
requests are denied.
See Fed. R. Civ. P. 37(a)(5)(C) (where a
motion to compel is granted in part and denied in part, court has
discretion to apportion fees).
In this case, each party should
bear its respective motion costs and fees.
See MASTR Adjustable
Rate Mortgages Trust 2006-OA2 v. UBS, Real Estate Securities Inc.,
No. 12 Civ. 7322(HB)(JCF), 2013 WL 5437354, at *2 (S.D.N.Y. Sept.
27, 2013 ("when motion is granted in part and denied in part, award
of expenses is discretionary"); Pegoraro v. Marrero, 281 F.R.D.
122, 134 (S.D.N.Y. 2012)(finding that "apportioning reasonable
expenses in connection with making the motion is not warranted"
under the circumstances); Safespan Platform Systems, Inc. v. EZ
Access, Inc., No. 06CV726A, 2011 WL 7473467, at *5 (W.D.N.Y. Dec.
30, 2011("Given the mixed result of defendants' motion . . . this
SO ORDERED at Hartford, Connecticut this 25th day of November,
Donna F. Martinez
United States Magistrate Judge
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