Mirmina v. Genpact LLC
RULING. For the reasons set forth in the attached Ruling, plaintiff's 63 MOTION to Compel is DENIED. Signed by Judge Sarah A. L. Merriam on 7/27/2017. (Kaczmarek, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Civil No. 3:16CV00614(AWT)
July 27, 2017
RULING ON PLAINTIFF’S MOTION TO COMPEL [DOC. #63]
Plaintiff Scott Mirmina (“plaintiff”) has filed a Motion to
Compel seeking an order requiring Defendant Genpact LLC
(“defendant”) to conduct an additional search for electronically
stored information (“ESI”). [Doc. #63]. Defendant has filed a
Memorandum of Law in Opposition to plaintiff’s motion. [Doc.
#67]. For the reasons set forth below, plaintiff’s motion is
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets
forth the scope and limitations of permissible discovery:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense
and proportional to the needs of the case, considering
the importance of the issues at stake in the action, the
amount in controversy, the parties’ relative access to
relevant information, the parties’ resources, the
importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit. Information within this
scope of discovery need not be admissible in evidence to
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Fed. R. Civ. P. 26(b)(1). “The party resisting discovery bears
the burden of showing why discovery should be denied.” Cole v.
Towers Perrin Forster & Crosby, 256 F.R.D. 79, 80 (D. Conn.
On May 4, 2017, plaintiff filed a Motion to Compel
additional responses to certain discovery requests. See Doc.
#41. On June 13, 2017, this Court issued a Ruling denying
plaintiff’s motion, except to the extent the motion requested
“materials described in the Initial Discovery Protocols that
have not yet been disclosed.” Doc. #58 at 11. The Court further
required defendant to comply in full with the Initial Discovery
Protocols immediately, to the extent it had not already done so.
On July 14, 2017, plaintiff filed the instant motion. See
Doc. #63. Plaintiff states that he “is concerned” that defendant
has “withheld communications” that would be responsive to the
Initial Discovery Protocols. Doc. #63-1 at 2. Plaintiff argues,
in essence, that defendant’s search for ESI was insufficient
because counsel relied upon an employee directly involved in the
underlying claims of the suit to search her own emails for
responsive documents. See id. Plaintiff cites no case law in his
supporting memorandum. See id. Defendant opposes plaintiff’s
motion, asserting that plaintiff’s concerns are unfounded
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because the search for responsive records was coordinated and
overseen by counsel. See generally Doc. #67. Defendant has
provided an affidavit of defendant’s in-house counsel detailing
the steps that counsel took to ensure that a proper search for
ESI was conducted.
A party’s discovery obligations do not end with the
implementation of a “litigation hold” — to the contrary,
that’s only the beginning. Counsel must oversee
compliance with the litigation hold, monitoring the
party’s efforts to retain and produce the relevant
documents. Proper communication between a party and her
lawyer will ensure (1) that all relevant information (or
at least all sources of relevant information) is
discovered, (2) that relevant information is retained on
a continuing basis; and (3) that relevant non-privileged
material is produced to the opposing party.
Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y.
2004). “Responsibility for adherence to the duty to preserve
lies not only with the parties but also, to a significant
extent, with their counsel.” Electrified Discounters, Inc. v. MI
Techs., Inc., No. 3:13CV1332(RNC), 2015 WL 2383618, at *2 (D.
Conn. May 19, 2015) (quotation marks and citation omitted).
Indeed, for the current “good faith” discovery system to
function in the electronic age, attorneys and clients
must work together to ensure that both understand how
and where electronic documents, records and emails are
maintained and to determine how best to locate, review,
and produce responsive documents. Attorneys must take
responsibility for ensuring that their clients conduct
a comprehensive and appropriate document search.
Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 437–
38 (S.D.N.Y. 2010); see also Fed. R. Civ. P. 26(g) (requiring
that counsel make a “reasonable inquiry” prior to certifying
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that a discovery response is “complete and correct as of the
time it is made”).
Defendant has described the steps that counsel took to
coordinate and supervise the search for ESI in this matter. See
Doc. #68 at 1-2. In-house counsel: (1) issued a timely and
detailed litigation hold to potential custodians of ESI,
directing the preservation of any records and documents that
might pertain to plaintiff’s claims; (2) gave instructions to
the ESI custodians regarding searches and specific search
parameters; (3) explained the importance of a thorough search to
the ESI custodians; and (4) provided guidance when questions
arose during the search. See id. In-house counsel affirms that
he forwarded the results of the searches to outside counsel, who
in turn conducted a review for processing and production. See
id. Counsel for defendant has represented that a comprehensive
search was conducted for all documents subject to production
under the Initial Discovery Protocols, and all responsive
documents have been disclosed. See Doc. #67 at 5; see also Doc.
#63-3. Based on defendant’s sworn representations, the Court is
satisfied that proper steps were taken and that counsel has
appropriately assumed responsibility for ensuring that a
comprehensive search was conducted.
Plaintiff’s concern that responsive emails have not been
produced appears to be based on nothing but speculation. This is
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insufficient to require defendant to conduct an additional
search. See Lord v. Int’l Marine Ins. Servs., No.
3:08CV1299(JCH), 2013 WL 1136410, at *3 (D. Conn. Mar. 18, 2013)
(denying a motion for discovery sanctions where the plaintiffs
provided “no evidence other than mere conjecture that
[defendant] has been less than fully forthcoming in its
discovery response”); Trilegiant Corp. v. Sitel Corp., 275
F.R.D. 428, 435 (S.D.N.Y. 2011) (denying defendant’s motion to
compel, in part, because “defendant cannot simply rely on
speculation that [plaintiff] is withholding documents”
(citations omitted)); Rubinow v. Ingelheim, No. 3:08CV1697(VLB),
2010 WL 1882320, at *7 (D. Conn. May 10, 2010) (denying
plaintiff’s motion to compel, in part, where “Plaintiff is
unable to articulate any particular reason why she believes that
the Defendant is withholding responsive documents, apart from
her counsel’s speculation”); Palm Bay Int’l, Inc. v. Marchesi Di
Barolo S.P.A., No. 09CV601(ADS)(AKT), 2009 WL 3757054, at *9
(E.D.N.Y. Nov. 9, 2009) (denying a motion to compel, in part,
where “other than innuendo, Defendant has not provided any
substantive evidence of Plaintiff’s deliberately withholding
The Court accepts defense counsel’s sworn representation
that all responsive materials have been disclosed. See Miller v.
Praxair, Inc., No. 3:05CV402(CFD), 2007 WL 1424316, at *5 (D.
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Conn. May 10, 2007) (“The court accepts defense counsel’s
representation that it has searched for, and has been unable to
locate [the discovery requested by plaintiff].”). Without any
evidence to support plaintiff’s contention that defendant has
“deliberately or by neglect, withheld communications[,]” Doc.
#63-1 at 2, the Court will not require defendant to conduct an
additional search for ESI.
For the reasons set forth above, plaintiff’s Motion to
Compel is DENIED. [Doc. #63].
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the District Judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 27th day of
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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