Saliga v. Chemtura Corp

Filing 118

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
DIANE SALIGA,
Plaintiff,
v.
CHEMTURA CORPORATION,
Defendant.

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CASE NO.

3:12cv832(RNC)

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
Sedona

Principles

all

emphasize

that

electronically

information ('ESI') should be a party-driven process."

stored

Aguilar v.

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.
26(f)(3)(C).

"Of course, the best solution in the entire area of

electronic discovery is cooperation among counsel."

1

William A.

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
F.R.D. 134,
recognized

136
.

.

(S.D.N.Y.
.,

2009).

cooperation

"As the

between

Sedona

counsel

Conference

regarding

the

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
court."

Aguilar, 255 F.R.D. at 358.

The plaintiff's motion was only recently filed.

However, for

almost a year the parties have been unable to agree on how the
defendant should search and produce its emails.
conference

with

the

court

on

September

4,

During a status
2013,

the

court

(Chatigny, J.) expressed dissatisfaction with the parties' lack of
progress.

(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

2

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
agreement.
The deadline for the completion of discovery is
December 29, 2013.
2

meet and confer again would be futile.
Form of Production
The court first considers the form in which the emails will be
produced.
specify

Under Fed. R. Civ. P. 34, a requesting party "may
the

form

or

forms

in

information is to be produced."

which

electronically

stored

Fed. R. Civ. P. 34(b)(1)(C).

The

plaintiff requests that the emails be produced in native format,
the

form

in

which

the

document

was

created.

"[E]lectronic

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."
The

Sedona

Conference

Working

Group

on

Electronic

Document

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

3

"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).
3

production
unreasonably

in

native

expensive.

format

would

Instead,

be
it

unduly

says

burdensome

that

its

or

standard

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.)

(Doc.

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
formats.
The

defendant

is

correct that

"TIFF

is

the

most

common

choice." Effective Use of Courtroom Technology: A Judge's Guide to
Pretrial and Trial 73 (Federal Judicial Center 2001).

Here,

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
native format.

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

4

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
2010).
4

native

format

"absent

a

showing

by

[defendant]

that

such

a

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
granted.").
Production Requests 8 & 61
The court next considers two particular ESI requests the
plaintiff made in her First Request for Production of Documents.

5

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
allegations

contained

in

Plaintiff’s

employment,

the

in

Complaint,

the

the

drafting

of

supervision
any

of

disciplinary

warnings, drafting of performance reviews, drafting of performance
improvement plans and letters of termination."

The defendant

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."
Def's Response.)

The defendant also objects that the request is

duplicative of request 61 (discussed below).
objections,

the

(Doc. #99, Ex 5,

defendant

produced

Without waiving its

electronic

communications

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.
In

Request

for

Production

61,

the

plaintiff

seeks

"all

electronic documents concerning the allegations in the complaint
and the Plaintiff's employment" for the same time period.
request further states that

6

The

[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.

The

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.)

As a

result, the parties present the court with competing proposals
about how to search the defendant's email5 communications.6

(Doc.

#99, Ex. 12.)
The court first considers the issue of custodians.
parties

5

do

not

dispute

the

custodians

This ruling is confined
submissions appear so limited.

to

6

email

whose

email

because

the

is

The
to

be

parties'

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.
7

searched.

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.
12.)
The court turns to search terms.

The court is loathe to

decide the search terms to be used because the parties are far
better

positioned

to

do

so.

See

William

A.

Gross

Const.

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").

"Ideally, the

parties should agree on the search methods, including search terms
or concepts . . . ."
Electronic

Document

The Sedona Conference Working Group on

Production,

The

Sedona

Principles:

Best

Practices Recommendations & Principles for Addressing Electronic
Document

production,

p.

60

(2d

ed.

2007).

See

also

Sedona

Conference Cooperation Proclamation: Resources for the Judiciary 22

7

These custodians are:
1.
Jogita Khilnani
2.
Christine Peterson
3.
Susan Mullen
4.
Ayesha Jagtiani
5.
Mohsen Baccar
6.
Allen Downes
7.
Denise Mosher
8.
Anthony Longo
9.
Assunta Chiaro
10. Kirk Erstling
8

(August 2011) (suggesting as a judicial management strategy

to

"[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

custodians'

"Mullen."

names,

i.e.,

"Susan

Mullen",

"Sue",

"Susan",

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
and unnecessary.

Finally, the defendant contends that the 11

search terms should be searched within 50 words of "Diane" and
"Saliga."
arguments,

After
the

considering

court

is

the

persuaded

parties'
that:

submissions

(1)

including

and
the

custodians' names as search terms is superfluous; (2) "India Audit"
should be included as a search term and (3) the search terms need

8

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
Ex. 12.)
9

not be combined with terms "Diane" and "Saliga" as the addition of
these terms unduly narrows the search.

Accordingly, the defendant

shall

email

conduct

a

keyword

search

of

of

the

identified

custodians using the 129 search terms.10
Information regarding Data Collection
As

a

final

matter,

the

court

turns

to

the

plaintiff's

insistence that the defendant provide her with highly specific
information regarding the defendant's "data collection process
information,

source

information,

software information."

custodian

information

[and]

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.)

The

plaintiff went so far as to instruct the defendant not to produce
any ESI discovery until the plaintiff was satisfied that her

9

The
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.

search terms are:
Bless You
Hindu
Chi Ro
Caucasian
Christian
Candles
Jesus
Discrimination (Discriminat!)
Harassment (Harass!)
Cross
God Bless you
India Audit

10

The court refrains from determining a temporal scope of the
emails to be searched as that issue is not briefed.
10

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.
regarding

the

If the plaintiff has legitimate concerns

adequacy

of

the

defendant's

procedures, counsel should discuss them.

data

collection

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).

See, e.g.,

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").
Conclusion
For these reasons, the plaintiff's motion to compel ESI
discovery (doc. #98) is granted in part and denied in part.

The

plaintiff and the defendant both request fees and costs.

The

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.

11

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
Court

may

37(a)(5)(C)

apportion
and

finds

reasonable
that both

motion
sides

expenses
should

bear

under
their

Rule
own

respective costs.")
SO ORDERED at Hartford, Connecticut this 25th day of November,
2013.

___________/s/________________
Donna F. Martinez
United States Magistrate Judge

12