Feinberg v. T. Rowe Price Group, Inc. et al

Filing 104

MEMORANDUM OPINION. Signed by Magistrate Judge J. Mark Coulson on 7/2/2019. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID G. FEINBERG, et al.,
and all others similarly situated,

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Plaintiffs
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v.

Civil Case No. 17-cv-00427-JKB
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T. ROWE PRICE
GROUP, INC., et al.

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Defendants.

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MEMORANDUM OPINION

This is a follow-up dispute to one that the Court addressed in its June 17, 2019 letter order.
(ECF No. 94). To summarize, the parties disagreed about the adequacy of Defendants’ search for
Electronically Stored Information (“ESI”). Although the Court found that Defendants’ efforts
were generally reasonable, it ordered Defendants to produce a sample of the ESI that Defendants’
employed search methodology had deemed unresponsive to verify that that methodology had not
overlooked a meaningful number of responsive documents.1 Defendants anticipate that this
sample will be approximately 700 documents.
Defendants have argued that the parties’ current protective order does not adequately cover
potential issues relating to the production of the above-described sample and so seek an order
specifically tailored to its production. (ECF Nos. 96 & 100). Plaintiffs argue that the current
protective order is adequate to cover the sample and that Defendants’ proposed order imposes an
undue burden on them. (ECF No. 98). Further, Plaintiffs have three additional specific objections

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Defendants have represented that their own statistical analysis of their ESI production shows that the expected rate
of “false negatives” (i.e., documents deemed unresponsive that were, in fact, responsive) is somewhere between .02%
and 5%.

to the wording of the proposed order: (1) it fails to adequately provide for the disposition of
documents from the sample that, in fact, are found to be responsive; (2) it provides inadequate
time for it’s proposed disposition of unresponsive documents; and, (3) it incorporates a preliminary
“whereas” clause that is factually inaccurate. Id.
Pursuant to the Federal Rules of Civil Procedure, the scope of discovery is limited to
nonprivileged matters relevant to the parties’ claims or defenses and proportional to the needs of
the case. Fed. R. Civ. Proc. 26(b). Here, the Court has ordered the production of documents that
Defendants have determined to be nonrelevant to the parties’ claims or defenses for the limited
purpose of verifying the reasonableness of Defendants’ ESI efforts. That is, the documents are
outside the scope of discovery. Defendants have further represented to the Court that the sample
contains documents that include confidential information, such as employee salary information.
Because the documents are outside the scope of discovery, being produced for the limited purpose
of corroborating the reasonableness of Defendants’ ESI production efforts, and contain (at least in
part) sensitive information, Defendants argue that a more tailored protective order should govern
their production, use and disposition.
The Court agrees. With documents that are otherwise discoverable, the intrusion into a
party’s business or affairs is offset by the responsibilities that the litigants have to the process as
set forth by the Federal Rules. With documents that are, by definition, beyond the scope of
discovery, the same compact does not exist, and additional care should be taken to make sure that
the documents at issue here cannot be used beyond their limited purpose, and that they be returned
or destroyed when that purpose is served. In the Court’s view, this imposes no undue burden on
Plaintiffs, for whose benefit the sample is being produced in the first place.

As for Plaintiffs’ more specific objections, Defendants’ proposed order (ECF No. 100-2)
does create a process for dealing with documents from the sample that, whether by agreement of
the parties or ultimate determination by the Court, are found to be responsive. In terms of the
disposition of unresponsive documents, the Court will extend the deadline for returning or
destroying such documents until ten (10) days after a final determination by this Court as to the
current discovery dispute, to include a decision by Judge Bredar concerning any appeal of my
June 17, 2019 order, (ECF No. 94), or any subsequent order relating to the current dispute. The
Court will not order the destruction of any attorney work-product concerning the sample as the
Court is confident that Plaintiffs will abide this Court’s order that the materials may not be used
for any purpose other than evaluating the reasonableness of Defendants’ ESI production.
Finally, the Court notes that Defendants have removed the objected-to “whereas” clause
from the most recent version of their proposed order.
A separate order will follow.

Dated: July 2, 2019

/s/
J. Mark Coulson
United States Magistrate Judge